author: HARPER, J. HARPER, J. DAVIDSON, J.

text:
    BARNES v. STATE.
    (No. 2689.)
    (Court of Criminal Appeals of Texas.
    March 11, 1914.
    On Motion for Rehearing, May 20, 1914.
    Dissenting Opinion, Nov. 4, 1914.)
    1. INTOXICATING LIQUORS (§ 146) — 'CRIMINAL Offenses — Soliciting Orders in Prohibition Territory.
    Certain members of a lodge in prohibition territory organized an auxiliary society, rented' a place where they installed barroom fixtures, and on the bar counter placed a locked box, in which each member placed an envelope containing the amount which he desired to spend that week for liquor. One of the members during the first year, and thereafter a different member each week, would take out the money from the box, purchase beer, place it on ice, and have it dealt out to the members to the amount paid for by them, by a porter hired by the society. Accpsed attended to the business for one week, and had beer carried to the apartment, kept there on ice, and dispensed by the porter. Held that, while accused was not guilty of selling intoxicating liquor, he was guilty of soliciting orders for liquor, in violation of Acts 31st Leg. c. 20, imposing an annual state tax of $4,000 on the business of selling intoxicating liquors in counties, etc., where the qualified voters have voted to prohibit its sale, by soliciting or taking orders therefor, since the placing of the box on the counter with the understanding that the beer would be ordered was the same as if an express personal solicitation had been made.
    [Ed. Note. — Por other cases, see Intoxicating Liquors, Cent. Dig. §§ 159, 160, 163; Dec. Dig. § 1467.]
    2. Intoxicating Liquors (§ 143) — Criminal Offenses — Keeping Liquor on Deposit.
    Accused was also guilty of violating the provision of Acts 31st Leg. c. 20, levying an annual state tax of $2,000, on persons pursuing in prohibition territory the business of keeping, maintaining, or operating a place, by whatever name known, where intoxicating liquor is kept on deposit for others, as what he did was with the understanding that some member of the society would do the same each succeeding week and was not wholly an accommodation.
    [Ed. Note. — Eor other cases, see Intoxicating ■ Liquors, Cent. Dig. § 152; Dec. Dig. § 143.]
    On Motion for Rehearing.
    3. Intoxicating Liquors (§ 15) — Statutory Regulations — Validity.
    Acts 31st Leg. c. 20, levying an annual state tax of $4,000 on the business of selling liquor by soliciting and taking orders therefor in local option territory, does not license the sale of intoxicating liquors in such territory, and is not invalid as licensing. the doing of an unlawful act, but is merely intended to regulate and control, if not to prohibit, the business of soliciting orders in such territory by persons licensed in territory, where the sale of intoxicating liquors is permitted, and who fill such orders outside prohibition territory, it having been uniformly held that the sale ■ in such case is made where the order is filled, especially when such act is construed, as it should be, in connection with Acts 31st Leg. (1st Ex. Sess.) c. 15, making it a felony punishable by imprisonment for not less than two years to pursue the occupation of selling intoxicating liquors in prohibition territory, and Acts 31st Leg. (1st Ex. Sess.) c. 35, making a single sale of intoxicating liquors a felony punishable by imprisonment for not less than one year.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 17, 18; -Dec. Dig. § 15.]
    4. Statutes (§ 225%) — Construction—Construing Different Acts Together.
    All acts dealing with the same subject should be construed together, especially where they were all adopted by the same Legislature.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 304; Dec. Dig. § 225%.]
    5. Courts (§ 91) — Precedents—Decisions of Supreme Court.
    While the construction of the civil statutes by the Supreme Court is final and will be followed by the Court of Criminal Appeals, that court, in construing the criminal statutes and enforcing the criminal laws, must follow its own judgment, though contrary to the decisions of the Supreme Court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 313, 325, 326; Dec. Dig. § 91.]
    Davidson, J., dissenting.
    Appeal from Harrison County Court; Geo. L. Huffman, Judge.
    George Barnes was convicted of offenses, and he appeals.
    Affirmed.
    S. P. Jones and Bibb & Scott, all of Marshall, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted under complaint and information containing two counts; one charging him with soliciting and taking orders for intoxicating liquors, the other for keeping and maintaining a cold storage, a place where intoxicating liquors were kept for others. Appellant waived a jury and submitted his case, to the court, and he was found guilty on both counts. The validity of both of these laws has heretofore been passed on by this court, and both have been sustained. Edmanson v. State, 64 Tex. Cr. R. 413, 142 S. W. 887, and Ex parte Flake, 149 S. W. 146. After a careful review of this question, we see no reason to change our views as to the validity of these laws. So the only question presented by this record is; Does the evidence show that appellant has been guilty of violating these laws?

The evidence would show that, when prohibition was adopted in Marshall, some members of the Elks Lodge at that place organized an auxiliary society, the purpose of which was to obtain and keep for their own use intoxicating liquors. A plan was adopted which, it may be said, in behalf of those joining this auxiliary society, they did not think would be in violation of the law, but their good faith in this matter cannot avail them, for, if they were mistaken, it would be a mistake of law and not a mistake of fact. They employed attorneys to devise for them a scheme or plan whereby they could obtain and keep intoxicating liquors on hand to be used by them in such quantities and at such times as they desired. But it appears to us that in an effort to evade the law, instead of doing so, a plan was devised that would be in violation of almost every law we have regulating and prohibiting the sale of intoxicating liquors, and, if this scheme could be lawfully carried out, our prohibitory laws, instead of being denominated prohibitory, should be labeled “laws to enable liquor to be sold without any regulation and without paying any tax.”

The society was organized, a place rented, barroom fixtures installed, a porter employed, who was to fill the place of bartender in .the ordinary saloon. No orders were solicited in words, but they agreed amongst themselves they would place a locked box on the end of the bar counter, and each member who desired intoxicating liquor should write his name on a slip of paper, place in an envelope the amount of money he desired to expend that week for liquors, and drop the envelope in the box. It was first stipulated that a secretary should be elected who would carry the key to this box, and would take out the name, money, etc., and order the liquor's. When it was received by the society, the secretary would then issufe to him a card entitling him to the amount of liquor he had ordered, to be drunk when he pleased during that week. The evidence would show that only beer has been ordered, and, if a man placed in a dollar, he would get a ticket entitling him to 20 glasses of beer, and so on; the beer always being calculated at 5 cents a glass, the same as the price at a regular saloon. The secretary was to take the money, figure the cost of. rent, ice, etc., for one week, deduct this amount, and then order beer in bulk with the remainder of the money, and, when received, keep it on ice, and have it dealt out to the holder of the ticket by the porter when called for. It is claimed, if the beer did not hold out, a man lost that much of his ticket, but, if there was more beer than the ticket called for, then it was drunk indiscriminately by the members of the society free. In this wise a regular beer saloon was maintained by the members of the society, and they could get their ice cold beer on tap at any and all times. However, the evidence would show that no secretary was elected, and the first year it was operated Mr. Clark, who was an officer of the lodge, attended to all the duties supposed to be performed by the secretary of the society, carried the key to the box, once weekly took out the money, calculated the expense, and then ordered beer with the remainder, issued tickets to those contributing the money, and had the porter keep it on ice and serve the members. When he ceased to be an officer, appellant took over the business for one week and attended to it, and since then it has been understood and agreed that some member of the society should do so weekly. The only pay or consideration that he was to or would receive would be that, if he attended to it one week, some other member would voluntarily attend to the business the next week. But each and every one was informed that, if he desired intoxicating liquors, it was only necessary to place the money in the box, with his name, and it would be forthcoming the next week. The placing of this box on the bar counter, with the understanding that the beer would be ordered, was but an invitation to do so, as much as if express personal solicitation had been made. It was an attempted evasion of the law! while the very thing to be done was what the law prohibited. He took the orders for beer out of the box, ordered the beer, and had it delivered to the person giving the order. He violated, not only the express letter of the law, but its spirit and intent as well.

Again he says that taking a portion of the money they placed in the box, paying the rent and Sorter hire with it, buying the ice, etc., receiving the beer at the depot, having it hauled to the rented apartment, and there placed on ice, and kept for those contributing the money, would not render him guilty, under the cold storage statute. He claims he did all this as an accommodation, but the facts show that he did so one week, with the understanding that some other member of the auxiliary society would do the same for him the next week, and another the week after, etc. We are of the opinion these acts violate both the spirit and letter of the cold storage statute. Ray Clark testified in behalf of appellant that he was with appellant when he opened the box, and he and Mr. Barnes made out a list of those who had placed money in the box, and the amount-each had placed in there; that there was $26.50 taken,out of the box by Mr. Barnes; that they took out $5 for rent, $1.80 for ice, $3.25 for express, $1 for gas, 35 cents for telephone, and 10 cents for exchange, leaving $15, and with this appellant ordered three half barrels of beer, and gave, to the men contributing the money, tickets calling for a glass of beer for each 5 cents con tributed. The express agent testified:

“I am the agent for the Wells Eargo Expresa Company in the city of Marshall. This company does a general express business and brings liquor to Marshall, and this is the liquor book which I have with me. It contains a complete record of our shipments. Tes, it shows shipments of liquor on the 1st day of April, 1913, and shows that Mr. George Barnes received a half barrel of beer from Palestine, Tex. On page 78 it shows that on the 2d day of April Mr. George Barnes received two half barrels of beer from Palestine, and Mr. .Barnes signed for both of these shipments. Tes, there is a shipment to Mr. Barnes on page 99; that is, on April 4th. Two half barrels of beer from Palestine, Tex. On page 116 there is a shipment of two half barrels of beer from Palestine, Tex. It was signed for by Mr. Barnes. This was on April 5th.”

When Mr. Clark was asked about the other shipments shown to have been received by Mr. Barnes during this week, he testified:

“No, the club did not order more than $15 worth of beer. The other that was ordered the club had nothing whatever to do with, but it was dispensed with the same apparatus and the same porter. The first three halt barrels cost us $15, or $5 per half barrel, and, after that was gone, the Elks Lodge donated the $5 and bought another half barrel. There wasn’t any tickets issued or used for this half barrel, and Mr. Barnes or the porter signed for it for the express company. I don’t remember what time it was ordered, but it was some time during the week. Yes, the half barrel that the express company’s books show, under date April 1st, was the beer which was ordered by telephone. On Wednesday we received two more half barrels, and my recollection is that we wrote for this. We also received two more half barrels on Friday. I am pretty sure that was ordered by mail; that the two half barrels received on Saturday were ordered by mail also, but shipped at different times. Sometimes it was ordered shipped as we needed it, and sometimes it is not. Yes, we issued tickets to those parties who deposited the money that week, and after the three half barrels, or the $15 worth, was used up by those parties who had tickets, then any one who came up there drank up the other beer that was ordered after that. It was on tap free to the members of the Elks Lodge, as the lodge had contributed the $5 to pay for it. The other three half barrels that were received that week was ordered by individual members of the Elks Lodge, and the social club had nothing to do with that. I think that the club’s beer had gave out, and some of the members wanted some moi'e beer, and a crowd got together, and each contributed some money and ordered the other three half barrels. Mr. Barnes ordered it for them, and he received it there at the lodge rooms.”

So it is seen that appellant not only ordered the beer for the society, hut also three half barrels of 'beer, besides the amount the $15 and $5 rent paid for. The record also discloses he had it carried to the apartment, had it there kept on ice, and dispensed by the porter.

Without going further into the facts, we think the court was justified in finding appellant guilty, and the judgment is affirmed.

DAVIDSON, X, dissents.

On Motion for Rehearing.

HARPER, J.

Appellant has filed a motion for rehearing herein, and presented it in a way to deserve, and it has received, our most thoughtful consideration.

In his first assignment he raises a question not presented in his original brief, and not raised in the trial court; yet it is a fundamental question, and he is entitled to have it considered. He contends:

“The court erred in affirming the judgment in this case because chapter 20 of the Acts of 1909, levying a tax upon the business of selling liquor by soliciting and taking orders therefor in local option territory, and also levying a tax upon persons, firms, etc., pursuing the business of operating a cold storage in local option territory, is unconstitutional and void.”

If the act in question is 'violative of any provision of the Constitution of this state, of course it is void, and no one should be punished thereunder, and this is a question that we think can be raised at any stage of the proceedings. Appellant states he is aware of the decisions of this court in the cases of Edmandson v. State, 64 Tex. Cr. R. 413, 142 S. W. 887, and Ex parte Flake,, 149 S. W. 146, in which we sustained the constitutionality of the act in question, but he says he does not understand that the statute was directly attacked on the ground of its invalidity by reason of the fact that it is an act, the effect of which is to license the sale of liquor in territory where it is prohibited. If this was the proper construction of the act, we would readily agree with appellant that the act in question was unconstitutional. Appellant cites us to the case of State v. Texas Brewing Co. (Sup.) 157 S. W. 1166, a decision by our Supreme Court (Justice Hawkins at the time entering a dissent), as sustaining his contention, and we frankly admit if that court intended to hold that the act licensed the sale of liquor in prohibition territory, which construction is placed on the opinion in question by appellant, and such opinion is correct in so holding, then its conclusion would be unavoidable; but does the opinion so hold, and, if it does, did the Supreme Court properly construe the intent and purpose of the Legislature in enacting that law?

The act in question reads:

“In all counties, justice precincts, towns, cities or other subdivisions of a county where the qualified voters thereof have by a majority vote determined that the sale of intoxicating liquors shall be prohibited therein, there is hereby levied upon all firms, persons, association of persons and corporations that pursue the business of selling or offering for sale any intoxicating, liquors by soliciting or taking orders therefor in any quantities whatsoever, in any such county, justice precinct, town, city or other subdivision of a county, an annual state tax of four thousand ($4,000.00) dollars, and each county, and also each incorporated city or town may levy an annual tax not exceeding two thousand ($2,-000.00) dollars in any such county or incorporated city or town where such business is pursued.”

It is a matter of common knowledge in this state that prior to the adoption of this act, in all territory where prohibition had been adopted, liquor dealers residing outside of such territory had adopted the method of sending their drummers and agents into such territory to “solicit orders for the sale of such liquors,” and, when such persons were prosecuted for transacting such business, this court had held that the sale did not take place where the order was solicited, although it contemplated a delivery, hut the sale tools place where the order was received. In Bruce v. State, 36 Tex. Cr. R. 53, 35 S. W. 383, this court, in an opinion by Judge Hurt, approved the following rule of law announced in Black on Intoxicating Liquors:

“It is * * * generally held that where a person living or doing business in one state sends his agent into another state to solicit orders for goods, and the agent there takes orders, and sends them to his principal’s place of business, and the latter fills the orders, and without any special arrangement as to the manner and place of delivery delivers them to a carrier in his own state, to be transported at the expense of the purchaser to the latter’s place, the place of sale is in the state where the agent’s principal does business.”

In tlie case of Merriweather v. State, 48 Tex. Cr. R. 82, 86 S. W. 332, in an opinion by Judge Davidson, this court held that, where an agent of a liquor dealer doing business in Waco, McLennan county, sent his agent into Hill county (a prohibition county), the agreed facts stated that:

“Appellant approached the witness and personally solicited him to give him an order for whisky to be sent from the liquor house of E. P. Gates at Waco to the witness at Hillsboro, for which liquor house appellant was then acting as agent in Hillsboro; that witness consented to give the order. The appellant handed witness a printed order to sign. He signed it, and handed it back to the appellant. Witness did not mail the order, and furnished no postage to send it, and the whisky so ordered was to be shipped to him at Hillsboro the next day, and it came accordingly. The evidence showed that on other occasions appellant solicited and took a number of orders from witness, and various witnesses testified • to similar transactions. Held, This constituted a sale in Waco, and not a sale in Hillsboro. And the opinion says: ‘Such has been the holding in this state in an unbroken line of decisions, and such is the holding of the Supreme Court of the United States.’ ”

In Ex parte Massey, 92 S. W. 1087, this court held, speaking through Judge Davidson:

“It is not the law, if the party solicits or takes an order in a local option district to deliver intoxicants in such district, that it constitutes a sale” — citing Weldom v. State, 36 Tex. Cr. R. 34, 35 S. W. 176; Keller v. State, 87 S. W. 669, 1 L. R. A. (N. S.) 489; James v. State, 45 Tex. Cr. R. 592, 78 S. W. 951; Sedgwick v. State, 47 Tex. Cr. R. 627, 85 S. W. 813; Parker v. State, 48 Tex. Cr. R. 69, 85 S. W. 1155; Joseph v. State, 86 S. W. 326; Luster v. State, 86 S. W. 326; Dupree v. State, 91 S. W. 578; Newbury v. State, 44 S. W. 843.

In Keller’s Case, supra, this question is discussed. at length in an opinion by Judge Davidson and the authorities collated. In that case the court was discussing the statute that had been passed by the Legislature, which provided:

“That in all contracts of sale and shipment of intoxicating liquor from any point in this state, * * * where the terms of said contract is * * * ‘collect on delivery,’ the same is and shall be a sale * * * where said goods are delivered and paid for, and provided further that where orders are solicited, * * * and such order is subsequently filled, the sale shall be construed to have been made at the place whei'e such order was solicited.”

In passing on that statute this court said:

“Now it will be noted that until the Sinclair Case, supra, was decided in November, 1903, the Texas Reports, criminal and civil, so far as we have been able to ascertain, furnish no dissenting opinion from the rule announced in Bruce, Ereshman, and that line of cases. So, until more than two years after this act of the Legislature, it was unquestionably the law, without dissent, that the sale was at the point of shipment, and not at the point of destination, and appellate courts in this state had never questioned that rule. The passage by the Legislature of the above act cannot but be regarded as an express recognition that the rule of law was so well and thoroughly settled and recognized that the sale was at the point of shipment that it required legislation to change it; else this act was totally unnecessary. By the passage of this act that body undertook to set aside the well-settled law, as understood from the beginning, in Texas. It is not only an express recognition by the legislative body that such was the law as to the place where the sale occurred generally, but it is further an express recognition of the fact that in passing the act they were culling from this general law, and making an exception thereto, sales of intoxicating liquor. They also thoroughly understood that they were leaving by this act the law as settled in regard to all other sales, except intoxicating liquors. Not only so, but that act is further an express recognition of the fact by that body that the sale of all intoxicants should be under the law as it had been always, except where that sale occurred by virtue of a O. O. D. contract or shipment. We have held this act unconstitutional, and, upon a review of the question, we have been confirmed in the correctness of that conclusion. The provision of the Constitution in regard to local option only authorizes the people of a county, a justice precinct, city, or. town, etc., to prohibit the sale of the intoxicants ‘within the prescribed limits’; that is, the limits of the territory in which the law has been voted into operation. They could vote on no other proposition, except the prohibition of the sale of the intoxicants ‘within the prescribed limits’ or given territory, because this is the extent of the constitutional authority. The inclusion of this matter is the exclusion of all others. This would prohibit the Legislature or the people voting on local option-prohibiting the sale outside the ‘prescribed limits.’ Therefore, if the sale occurs outside the local option territory, the Legislature has no authority to prohibit the purchaser from carrying such intoxicants into the prohibited territory. The question is one only of sale within the local option limits. The Constitution does not make or undertake to make contracts between individuals, nor does it interfere with the right of contract, nor does it undertake to impair the obligation of contracts. It simply prohibited the sale within such territory.”

It is thus seen that the Legislature passed an act declaring that “where an order is solicited and subsequently filled that the sale shall be at the place where the order was taken,” and this court, through Judge Davidson, in an exhaustive opinion, held such act unconstitutional and violative of both the state and federal Constitutions, and yet our Supreme Court, in June, 1913, in the case cited by appellant (State v. Texas Brewing Co., supra) if it is to be construed as contended for by appellant, says such an act is not unconstitutional, and that it is the lano, even without the Legislature so declaring, for it says this law, which levies an occupation tax on the business of “making of sales by soliciting and taking orders therefor,” necessarily includes the right to deliver the liquor in the county where the order is taken, and therefore the sale is in the prohibition county, and the Legislature is without authority to license the sale of liquor in prohibition territory.

To the proposition that the Legislature is without authority to “license the sale of intoxicating liquors” in territory where prohibition has been adopted (except for the purposes the law authorizes), we readily agree, and do not think that any one will question that this is the law. Yet we do not think this was the intent nor purpose of the Legislature in passing the act levying a heavy tax on those who pursued the business of taking orders for the sale of liquor in prohibition territory. This court, in an unbroken line of decisions, has held, and still holds, that this is not a sale in the prohibition territory, but that the transfer of title takes place at the point where the order is accepted and filled and delivered to the carrier for transportation to the person who gave the order. The Legislature being confronted .with the decisions of this court that they had no authority to declare that the sale was at the point where the order was taken and where it was contemplated the goods should be shipped, and being confronted with the known conditions that, so soon as prohibition was adopted, liquor dealers established agencies in the prohibition territory to solicit, take, and forward orders for intoxicating liquors, and by such means effectively annulling, or at least impairing, the efficiency of the prohibition laws, and thereby thwarting the will of the people who adopted the law, and being further confronted with the proposition that soliciting and taking order establishments were often used as a cloak to cover up the illegal sales of intoxicating liquors, sought to regulate and control, if not prohibit, the business of soliciting and taking orders for intoxicating liquors in prohibition territory. And as said by the Supreme Court of the United States in the case of Delamater v. South Dakota, 205 U. S. 93, 27 Sup. Ct. 447, 51 L. Ed. 724, 10 Ann. Cas. 733, the soliciting and taking of orders for the sale of intoxicating liquors is an accessory business which the state has the right to control or prohibit in prohibition territory since the passage of the Wilson act by Congress. For a full discussion of this question, see the able opinion of Chief Justice White in that case.

The Thirty-First Legislature not only passed the act in question levying a $4,000 license fee on the business of soliciting and taking orders; it also passed an act making it a felony to pursue the occupation of selling intoxicating liquors in prohibition territory punishable by imprisonment in the penitentiary for not .less than two nor more than five years, and making a single- sale of intoxicating liquors a felony punishable by imprisonment in the penitentiary for not less than one nor more than three years. Session Acts 1909, pages 284 and 356.

To say that the Legislature intended, in the statute licensing the soliciting and taking orders, to license the sale of liquors in the prohibited territory, and then say that one who does so do was guilty of a felony and should be imprisoned in the penitentiary, would be to attribute to them an absurdity of which no sane body of men would be guilty. Sutherland on Statutory Construction, § 218, says:

“It is indispensable to a correct understanding of a statute to inquire first what is the subject of it, what object is intended to be accomplished by it. When the subject is once clearly ascertained and its general intent, a bey is found to all its intricacies; general words may be restrained to it; and those of narrower import may be expanded to embrace it to effectuate that intent.”

Again in section 208 he says:

“Where enactments separately made are read in pari materia, they are treated as having formed in the minds of the enacting body parts of a connected whole, though considered by such body at different dates. Such principle is in harmony with the actual practice of legislative bodies, and is essential to give unity to the laws, and connect them in a symmetrical system, and the object is to carry into effect the intention. It is to be inferred that a code of statutes relating to one subject was governed by one spirit and policy, and was intended to be consistent and harmonious in several parts and provisions. For the purpose of learning the intention, all statutes relating to the same subject are to be compared, and, so far as still in force, brought in harmony.” 1 Kent’s Com. 463, 464; State v. Williams, 13 S. C. 558; State v. Baltimore R. R. Co., 12 Gill & J. (Md.) 399, 433, 38 Am. Dec. 319; Wakefield v. Phelp, 37 N. H. 295; Mayor v. Howard, 6 Har. & J. (Md.) 383; Church v. Crocker, 3 Mass. 21; Holbrook v. Holbrook, 1 Pick. (Mass.) 254; Forqueran v. Donnally, 7 W. Va. 114; Earl of Ailesbury v. Patterson, 1 Doug. 28; Harrison v. Walker, 1 Ga. 32; Coleman v. Davidson, Cooke (Tenn.) 258; State v. Bell, 25 N. C. 506; Henry v. Tilson, 17 Vt. 479; Fort v. Burch. 6 Barb. (N. Y.) 60; Ranoul v. Griffie, 3 Md. 54.

Again he says in section 292:

“The object sought to be accomplished exercises a potent influence in determining the meaning of not only the principal, but also the minor, provisions of a statute. To ascertain it fully, the court will be greatly assisted by knowing, and it is permitted to consider, the mischief intended to be suppressed, or the necessity of any kind which induced the enactment.” Ruggles v. Illinois, 108 U. S. 526, 2 Sup. Ct. 832, 27 L. Ed. 812; Big Black v. Commonwealth, 94 Pa. 450; Dodge v. Gardiner, 31 N. Y. 239; Clark v. Janesville, 10 Wis. 136.

’in Am. & Eng. Ency. vol. 28, p. 620, the rule is said to be:

“In arriving at the intent of the Legislature in enacting a statute, not only must the whole statute and every part of it be considered, but, where there are several statutes in pari materia, they are all, whether referred to or not, to be taken together-, and one part compared with another, in the construction of any material provision. * * *' Especially does this rule apply to statutes passed at the same session of the Legislature. If such statutes are in pari mate-ria, they must be construed together, and, if possible, all must be allowed to stand, and effect must be given to each of them, regard being had to the intention of the Legislature. So contemporaneous legislation, not precisely in pari materia with the statute to be construed, may be referred to on the question of intent. Not only may contemporaneous and prior statutes be considered in construing a given act, but a subsequent statute may often aid in the interpretation of the prior one.”

In Cyc. vol. 36, under title “Construction of Statutes,” it is said:

“Every statute must be construed with reference to the object intended to be accomplished by it. In order to ascertain this object, it is proper to consider the occasion and necessity of its enactment, the defects or evils in the former law, and the remedy provided by the new one; and the statute should be given that construction which is best calculated to advance its object, by suppressing the mischief and securing the benefits intended. * * * In the construetion of a particular statute, all acts relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law. The endeavor should be made by tracing the history of legislation on the subject to ascertain the uniform and consistent purpose of the Legislature. With this purpose in view, therefore, it is proper tf> consider, not only the acts passed at the same session of the Legislature, but also acts passed at prior and subsequent sessions.”

When our Supreme Court was first organized, in the ease of Fowler v. Poor, Dallam Dig. (Tex.) 401, Chief Justice Hemphill said:

“It is our duty to construe all statutes, in relation to the same subject-matter, * * * in such a manner that they may all stand together and have concurrent efficacy.”

In Taylor v. Hall, 71 Tex. 218, 9 S. W. 143, Chief Justice Gaines, speaking for our Supreme Court, said:

“It is a rule, in the interpretation of statutes, that all acts relating to the same subject-matter may be considered. * * * We must read the act in question in the light of former legislation” — citing Fowler v. Poor, supra, and a number of other cases by our Supreme Court; also Sedgwick on Statutory Law, 247; Bishop on Statutory Crimes, § 36, and cases cited.

In Scoby v. Sweatt, 28 Tex. 728, the Supreme Court held, speaking through Chief Justice Moore:

“It is universally admitted principle that statutes upon the same subject must be construed together and with reference to each other. If it can be done consistently with their provisions, effect shall be given to all the enactments on the subject. This legislative intention is to be ascertained and followed. Where there is apparent conflict, general intention is limited and controlled by special intention.”

In Hanrick v. Hanrick, 54 Tex. 109, the Supreme Court held: ' .

“There is no doctrine in relation to the construction of statutes more certainly 'settled than this: That all acts in relation to the same subject-matter are to be taken in paid materia and considered as one act” — citing Scoby v. Sweatt, supra; Neill v. Keese, 5 Tex. 23, 51 Am. Dec. 746; Cannon v. Vaughan, 12 Tex. 402; Street v. Commonwealth, 6 Watts & S. (Pa.) 209; Bank v. Commonwealth, 10 Barr. (10 Pa.) 448; Brown v. Com’rs, 21 Pa. 42; Commonwealth v. Herrick, 6 Cush. (Mass.) 468; Williams v. Potter, 2 Barb. (N. Y.) 316; Potters’ Dwarris Stat. 189.

See, also, Bryan v. Sundberg, 5 Tex. 424; Selman v. Wolfe, 27 Tex. 72; Keenan v. Perry, 24 Tex. 257; Bonner v. Hearne, 75 Tex. 252, 12 S. W. 38; Lewis v. Aylott, 45 Tex. 199; Duncan v. Taylor, 63 Tex. 649; Kampman v. Tarver, 87 Tex. 497, 29 S. W. 768; Schendell v. Rogan, 94 Tex. 596, 63 S. W. 1001.

These citations from our Supreme Court could be continued at length, but we deem it unnecessary, and will now refer to a few of those of our own court so holding.

In Ex parte Schmidt, 2 Tex. App. 202, this court held:

“It is a well-settled rule of construction of statutes, and for the arriving at the legislative intention, that all laws in pari materia, or on the same subject-matter, are to be taken together, in. order to arrive at the result. * * * ‘All acts in pari materia,’ said Lord Mansfield, ‘are to be taken together as * * * one law.’ Our Supreme Court say that .‘the same Legislature is supposed to be actuated, in all that it does, by the same mind, and to have at all times had the same object and policy, and that it will not change its mind from day to day during the same session; and nothing short of expressions so plain and positive as to force upon the mind an irresistible conviction will justify a court in presuming that it was the intention of the Legislature that their acts passed at the same session should abrogate and annul one another. The decent respect due a co-ordinate department of the government would seem to forbid that such a presumption be indulged by the courts. Cain v. State, 20 Tex. 360.”

In Mock v. State, 11 Tex. App. 58, this court held.:

“In pursuance of the well-settled rule of construing statutes that, in order to determine the exact legislative intent, it is proper to consider all of the statutes in pari materia, we will look to all the laws in force on the subject * * * in order that we may arrive at a proper construction and application of these portions of the penal laws by which those who fail to perform the duties required of them by the general law become amenable to criminal prosecution.”

In Walker v. State, 7 Tex. App. 258, 32 Am. Rep. 595, this court said:

“The object, and the only object, of judicial investigation in regard to the construction of doubtful provisions of statute law is to ascertain the intention of the Legislature which framed the statute. * * * Every interpretation that leads to an absurdity ought to be rejected. * * * Every legislative act must have a reasonable construction.”

In Ex parte Gregory, 20 Tex. App. 217, 54 Am. Rep. 516, this court said:

“It is provided in our statute that ‘in all interpretations the court shall look diligently for the intention of the Legislature, keeping in view, at all times, the old law, the evil, and the remedy.’ Rev. Stats, art. 3138, subd. 6. And our Penal Code provides that ‘every law upon the subject of crime shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects.’ Penal Code, art. 9. I't will be perceived, from the provisions of our statute above quoted, that they are in accord with the rules of construction applicable to ordinances. They contemplate a reasonable construction (that is, a construction which will give effect to the intention of the legislative power enacting the law) ; and in interpreting the law all reasonable intendments which help to sustain and make the law operative are to be indulged and weighed by the court.” v

These citations and excerpts might be continued on down to the present day, both from the decisions of this court and the Supreme Court, but they sufficiently demonstrate the rule of construction that has always and does now prevail in this state, and with those rules of construction before us, if it is intended by the Supreme Court in the cáse of State v. Texas Brewing Co., 157 S. W. 1166, to hold, as contended by appellant, that the law levying a $4,000 license fee on those making sales by soliciting and taking orders therefor in prohibition territory would authorize one to engage in the sale of such liquors in prohibition territory, we cannot concur in such construction, but think it wholly wrong. As said herein-before, in territory where local option was adopted, and the sale of liquor prohibited, dealers licensed in territory where the sale was permitted had adopted the policy of securing agents in prohibition territory, or by sending fheir 'agents in such territory to solicit orders for intoxicating liquors, and fill such orders by shipping to the one who gave the order. Our court, and the Supreme Court, in the eases above cited, hold that the sale is not where the order is solicited, but at the point where the order is filled and delivered to the carrier. This was the evil confronting the Legislature, and the evil for which they were seeking a remedy (the regulation, if not the prohibition, of soliciting and taking orders in prohibition territory to be filled where the sale of liquor was licensed), and the Legislature had no thought of licensing the sale of liquor in prohibition territory, and to give such construction to their language would be doing violence to their intent and purpose and the language of the statute in question. To make it plain that such was not their intent and purpose, it is only necessary to note that the same Legislature increased the punishment for making a single sale of intoxicating liquor in the prohibited territory (making it a felony and punishable by imprisonment in the penitentiary), and, to further emphasize that fact, it will be noticeable that this same Legislature, for the first time, made it an offense to pursue the business of selling such liquors in the prohibited territory,, punishing such offense more severely than for making a single sale. Taking these three acts and construing them together as one act, as all the authorities both in this state and out of it say should be done, we do not think that any one can reasonably conclude that it was the intent and purpose of the Legislature, in fixing a license fee on soliciting and taking orders for the sale of intoxicating liquors, to license the sale of such liquors in such territory. It was not the intent of the Legislature to license the sale of such liquors in the prohibited territory, but, in addition to imprisoning one in the penitentiary if he did do so, they decided to regulate and control the accessory business of soliciting and taking orders in such territory, if not prohibit it by making the license fee so high that no one could afford to -pay it, but, if any one should take out the license, to require an application to be filed with the - county clerk that he might be known, and the territory in which he would engage in soliciting orders, the better to enable those intrusted with the enforcement of the law to prohibit sales in such territory.

Not only under the well-known rules of statutory construction, above quoted, would it do violence to the intent and purpose of the- Legislature to hold that they by this act intended to license sales of liquor in the prohibited territory, and violence to the language by them used in the statute, but when we consider that this court and the Supreme Court, in an unbroken line of decisions, have held and still hold that, when one solicits an order for intoxicating liquor in prohibition territory, the sale takes place where the order is, filled and delivered to the carrier, with which decisions the Legislature was familiar to say that they intended by this act to license sales in prohibition territory, and for that reason the statute was unconstitutional, would be to attribute to them an unreasonable intention, and one which, in the light of the opinions of this court and the Supreme Court, as to the place of sale when an order is taken, would be an absurd intent.

The statute is not subject to such construction, and we can hardly think the Supreme Court intended to so hold, but, as such construction of their opinion is contended for by appellant, we have discussed it from that viewpoint, and must say, if it does so hold, we cannot follow it. And while we have the utmost respect for the ability and learning of the members of the Supreme Court, and rely upon and follow their opinions in matters of civil law, yet this court has final jurisdiction in criminal matters, and we must follow our judgment. That court is of equal dignity with this court, and their decisions are final in all matters of construing the civil statutes, yet the Constitution of this state has made this court a court of final and supreme jurisdiction in the construction of criminal statutes and the enforcement of the law against crime. The soliciting and taking of «orders for the sale of intoxicating liquors in prohibition territory, without paying the fee therein fixed, was made a penal offense by the Legislature in this act in section 5 thereof, and punishable as therein stated. As to the wisdom of enacting this law, it is not our province to discuss nor decide, for, in the exercise of the powers conferred on them by the Constitution, the Legislature has seen proper to enact this law, and we cahnot declare it unconstitutional by giving to the language of the statute a strained construction, and one it is not susceptible of, in the light of all the opinions of this court, that a sale did not take place in the prohibited territory by soliciting or taking an order for intoxicating liquors in such territory. It has been held by this court that, whenever a legislative act can be so construed as to avoid conflict with the Constitution, such construction will be adopted by the courts. Ex parte Mabry, 5 Tex. App. 98. ■Again it is held: In construing legislative acts, courts must so interpret them as to ¡harmonize their provisions with the Constitution, if possible. Ex parte Murphy, 27 Tex. App. 494, 11 S. W. 487. And our Supreme Court has so held in Pickle v. Finley, 91 Tex. 487, 44, S. W. 480, wherein Chief Justice Gaines said: ..

“It is a well-settled rule in the construction of statutes that if an act of the Legislature be capable of two constructions, one of which conflicts with the Constitution and the other which does not, the latter must prevail. It is the duty of the courts so to construe every act of the Legislature as to make it consistent, if possible, with the provisions of the Constitution.”

What evil was there which confronted the Legislature at the time this act was passed? They had passed an act punishing those who made sales of liquor in prohibition territory, and the same Legislature that passed this act increased the punishment for making such sales. The evil and only evil to which their mind was directed in the passage of this act was the one that had grown up wherever prohibition had been adopted— the soliciting and taking of orders for liquors to be filled by licensed dealers elsewhere to be shipped into prohibition territory. They were seeking to regulate and control, if not prohibit, this evil, and this evil alone. Their intent and purpose is manifest by the language of this act alone, but, if not, then certainly it is made manifest by the other acts passed by the same Legislature. To strike down this act would leave unregulated and unrestrained this evil, and any and all persons could pursue it without leave or license, and thus, in a measure at least, render ineffectual the will of those people who, in their wisdom, have seen proper to adopt the prohibition laws to get rid of the evils incident to the sale and use of intoxicating liquors. While we regret to do so, yet if the construction contended for by appellant is the proper construction to give the opinion of the Supreme Court in the case of State v. Texas Brewing Co., supra, and is the one intended by the court, we think it erroneous and an improper construction of the act of the Legislature, and this court will, as it deems it its duty, enforce its provisions against all who solicit or take orders for the sale of intoxicating liquors in prohibition territory, and we adhere to the opinions in Edmanson v. State, 64 Tex. Cr. R. 413, 142 S. W. 887, and Ex parte Flake (Cr. App.) 149 S. W. 146.

We did not hold in the original opinion, and do not now hold, that appellant was guilty of selling intoxicating liquors in the prohibited territory, but only that the facts showed that he was guilty of soliciting and taking orders for the sale of intoxicating liquors in the prohibited territory, which orders, the facts show, when taken in the prohibition territory, were forwarded by appellant to a licensed dealer in Palestine, where the sale is licensed, and by the licensed dealer shipped to appellant at Marshall, which town was in prohibition territory. Appellant received the liquor so ordered by him and placed it on cold storage, where all those who had given orders called and got it when they desired. We agree that the authorities cited by appellant hold that this did not constitute a sale by appellant, but he was not prosecuted for making a sale of liquor in prohibition territory, but was prosecuted and convicted for soliciting and taking orders therefor.

The other questions raised were discussed in the original opinion, and we do not deem it necessary to do so again.

The motion for rehearing is overruled.

DAVIDSON, J.

(dissenting). The same question is involved in this case, as I understand it, as in the Edmanson Case, 64 Tex. Cr. R. 413, 142 S. W. 887. The facts, however, are very different. The statement in the Edmanson Case shows that about 20 witnesses for the state testified they went to Edmanson’s cold drink stand and gave him orders for intoxicating liquors. These orders were telephoned to Belton to a saloon, and the whisky would come usually upon the next train. In some instances the' whisky would be shipped in the name of the party ordering it, and they would get it from the depot. In other instances appellant delivered the whisky at his place of business. Furness testified he was a member of the firm of Warren & Furness. They were in the saloon business, and appellant began ordering whisky from their firm in September, and continued this until the following January. In September, October, and November his orders averaged about $10 a day. During the month of December, he ordered between $400- and $500 worth of whisky. Edmanson collected the money from all the parties from whom he took orders and settled with the liquor dealers at Belton. Under the decisions, Edmanson was pursuing the business of selling whisky in Lampasas, where his cold drink stand was situated. When he took the orders and the money and sent for the whisky, or when he sent for the whisky and took their money after the whisky reached him and he delivered it there, when ordered in his name, as I understand the decisions in Texas, this was a sale by Edmanson, and the Edmanson Case was decided upon that theory.

In the instant ease, however, there was a club at Marshall, a subordinate club formed in connection with the Elks Lodge. Quite a number of the members of the Elks order desired to drink beer; others did not. So they organized this subordinate club, with bylaws, rules, and regulations governing it. Among other matters, they would agree among themselves as to who was to order the whisky. Some time one member would volunteer his services for a week or such matter and then another. Some time the club would select a member. To get their money together for sending for the beer, they placed a box in a room, and each member desiring beer would put his money in an envelope and place it in that box, with his name written upon the envelope. If the party desired.20 glasses of beer, he would put a dollar in the envelope. In other words, the amount of money placed in the envelope would indicate, the number of glasses of beer the party would desire, rating it at five cents a glass. It was agreed among, the parties that this box was put there for that purpose, and they would designate some member of the club to get that money and send it to the place from which the beer was to be shipped. Appellant, a member of this club, was attending to this matter for the club at the time which covers this prosecution.

Without going further into detail, my Brethren hold that appellant was therefore soliciting orders from the members of the club. I do not understand the facts that way, nor do I believe it is a legitimate deduction or conclusion from the statement of the facts.Nor did he or any member contemplate purchasing from appellant. As a member of the club, at the instigation and request of other members of the club, he agreed, for the week covering this prosecution, to order beer for them. They were soliciting him rather than he soliciting them. They placed the money-in the box. He did not solicit them to do it. They appointed him as their agent to take that money and order the beer. Under no 'possible construction, fairly imposed, could he be charged with soliciting orders for the sale of beer. He did not sell a single glass of beer, nor offer one for sale, nor contemplate either selling or offering for sale, and no witness, as I understand it, undertook to testify that he did. For the beer a ticket was issued to the party for the number of glasses of beer covering the amount of the money he had deposited in the box. If it was a dollar, he got a ticket for 20 glasses of beer. When that was exhausted, he could get no more beer until the next order, when he would have to make another deposit. Appellant sold no beer, but simply gave the party a ticket indicating the number of glasses of beer he was entitled to have for the money that he had previously deposited. I do not care to make a further statement of' the facts. It is also agreed that local option was in effect at Marshall, where all these matters occurred.

Appellant was prosecuted under the act of the Legislature authorizing any person who desired to sell intoxicants by taking orders to do so by paying the tax specified in the act of the Legislature. He was charged with a violation of this statute. Had he paid the tax, then he could have sold all the intoxicants he pleased and take in all the orders he desired, under and by virtue of the terms of that legislative act, according to the opinion of the majority, but, because he did not pay this tax, this affirmance was ordered. See Acts of 1909, p. 63. That act by its terms clearly and definitely authorized a party to sell intoxicants in prohibition territory upon payment of the tax. So that there may be no-mistake, I quote the legislative act:

“In all counties, justice precincts, towns, cities or other subdivisions of a county where the qualified voters thereof have by a majority vote determined that the sale of intoxicating liquors shall be prohibited therein, there is hereby levied upon all firms, persons, association of persons and corporations that pursue the business of sellihg or offering for sale any intoxicating liquors by soliciting or taking orders therefor' in any quantities whatsoever, in any such county, justice precinct, town, city or other subdivision of a county, an annual state tax of four thousand ($4,000.00) dollars.”

Then follows the clause authorizing incorporated cities or towns to levy a $2,000 tax, which is one-half of the state tax. No fair construction can be placed on this- act except that it justifies and authorizes one, on payment of the required tax, to pursue the business of selling intoxicating liquors by soliciting or taking orders. That is the language of the statute. This is so understood and held in the Edmanson Case. In the Ed-manson Case I entered my dissent for several reasons, which is shown in the dissenting opinion, as reported in 64 Tex. Or. R. 413, 142 S. W. 887. Among other grounds of that dissent, I here notice and reiterate two: First. Where local option is in effect, the Legislature is powerless to authorize the sale of whisky or any intoxicant in local option territory ; that it is so by the Constitution, and every decision, until the recent opinions by this court so hold. The first case in Texas reviewing the effect of the local option law was Robertson v. State, 5 Tex. App. 155. The only question in that case was whether or not the state law, authorizing selling under saloon license, was paramount to the local option law after the local option law had been voted into effect. Upon that question the case came to the Court of Appeals, and the court held, in accordance with the terms of the Constitution, power had been vested in the majority of the voting citizenship of the given territory to vote out the sale of whisky, and it at once became the controlling law. This is so by virtue of article 16, § 20, of the Constitution ; and it also held, when the people had so voted, the saloon must cease its selling immediately upon the local option law going into effect; that the local option law was the paramount law, and this, as I understand, has not been questioned until recently. The Edmanson Case is in direct conflict with the Robertson Case and the Constitution. The Robertson Case was followed by a great number of cases, some of which I shall cite: Boone v. State, 12 Tex. App. 184; Donaldson v. State, 15 Tex. App. 25; Ex parte Lynn, 19 Tex. App. 293; Robertson v. State, 12 Tex. App. 541; Gibson v. State, 34 Tex. Cr. R. 218, 29 S. W. 1085; Rathburn v. State, 88 Tex. 281, 31 S. W. 189. Other courts of the federal Union have followed the same construction. See Rauch v. Commonwealth, 78 Pa. 490; State v. Yewell, 63 Md. 120; Commonwealth v. Jarrell (Ky.) 5 S. W. 763 ; Minnehaha County v. Champion, 5 Dak. 433, 41 N. W. 754; Butler v. State, 25 Fla. 347, 6 South. 67; Bagley v. State, 103 Ga. 388, 29 S. E. 123, 32 S. E. 414; Commonwealth v. Mueller, *81 Pa. 127; Wheeler v. State, 64 Miss. 462, 1 South. 632; Young v. Commonwealth, 14 Bush (Ky.) 161; State v. Weeks, 38 Mo. App. 566; Black on Intoxicating Liquors, 90 to 198.

The second proposition that I desire to here reiterate in that dissent was, at the same session of the Legislature, at page 284, that body passed an act punishing a citizen for pursuing the business of selling intoxicants in local option territory by confinement in the penitentiary for a period of from two to five years. How these two acts can stand together is, to my mind, incomprehensible. It is not the law that the Legislature can license the sale of intoxicating liquors in local option territory, because the people have voted it out, and by their vote, under the terms of the Constitution, that law became as sacred as the Constitution, and was inviolable until the people in the same territory had again voted on the question and repealed the law by their vote. The Legislature could not repeal it, nor could they change the status of the local option law in the given territory. It requires the vote of the people to vote it in and vote it out. This is so by all the authorities, and so thoroughly that they need not be cited. For both reasons this law should be held invalid. I do not understand how it is possible for the Legislature to license crime or authorize the pursuit of a business in violation of law. This act authorizing the selling of whisky by taking orders in local option territory would be, if the sale occurred, in direct conflict with the local option law, and therefore, where the party is pursuing that business, he would necessarily be selling in violation of the local option law. Pursuing such business is a felony, and in many of the counties in Texas to-day it is a felony to make one sale in local option territory, without even pursuing the business of selling. To say that the Legislature of Texas could license crime would be imputing to that body an act that, if directly made, would be to charge them with 'dereliction in office. No such motive ought to .be imputed to that department of the government. If the Legislature could license the crime of violating the felony statute under local option law, then that body could license crime for any other felony. If the Legislature can authorize a license to a party to violate the local option law by selling intoxicants, the same power could authorize the party to pursue the business of committing robbery, arson, murder, horse stealing, etc. These are all felonies, as is the pursuit of the business or occupation of selling intoxicants in local option territory.

So we have the strange anomaly that an act of the Legislature is upheld which authorizes the sale of whisky in local option territory by taking orders, and another act passed at the same session and by the same Legislature, but subsequently enacted, which punishes the party by incarceration in the penitentiary for the same selling. It will be noticed that the act authorizing this manner of selling in local option territory became effective on the 24th day of February, 1909. The statute prohibiting the pursuing of this business and affixing a penitentiary punishment to it was approved on April 15, 1909, and became effective 90 days after adjournment of the Legislature. So it was and is the later act. This latter act was in aid of local option, because it punished the party who pursued the business of violating the local option law with a heavier punishment than where he was only making one sale and not pursuing the business. It is another singular anomaly to hold that the state of Texas could take this money of its citizenship, authorizing him or them to do that certain thing, and at the same time incarcerate him in the penitentiary for doing the particular act which that body had authorized him to do, and for which the state had demanded and accepted his money and authorized him to do. But this is one of the many incongruities growing out of this character of legislation in recent years. I might mention another one of these incongruities. The same Legislature, at page 51 (Acts 1909) enacted what is known as “Nonintoxicating Malt Liquor Law.” Under that statute the Legislature affixed a punishment, authorizing the license to the citizenship of Texas where they desired to sell nonintoxicating beer and malt drinks. This was upheld in Ex parte Townsend, 64 Tex. Or. R. 350, 144 S. W. 628, Ann. Cas. 1914C, 814. In that case I also entered a dissent, showing the incongruities and incompatibilities of that act with other acts of the Legislature and the decisions of this court. In Moreno v. State, 64 Tex. Cr. R. 660, 143 S. W. 156, Ann. Cas. 1914C, 863, my Brethren, overruling a long line of cases, held that they judicially knew the term or word “beer” meant intoxicating liquors. With this view they were not satisfied, but went further and said they did not have to rest their opinion upon judicial knowledge, because the Legislature of Texas had determined what it took to constitute an intoxicant, and had defined it. In support of this they quoted an article from what is known as the Fitzhugh-Robertson saloon license law. The cited section is 34 of that act, and reads as follows:

“The term ‘intoxicating liquor,’ as used in this article shall be construed to mean fermented, vinous or spirituous liquors or any composition of which fermented,. vinous or spirituous liquors is a part; and all of the provisions of this act shall be liberally construed as remedial in character.” Acts 31st Leg. (1st Ex. Sess.) c. 17.

It will be noticed that under the saloon law, when it comes to selling intoxicants, this provision authorizes the holder of the license to sell all of these different things, whatever may have been their compound or ingredients, under their saloon license, and especially confined the term “intoxicating liquors” to the saloon license act, for it uses the ierra “Intoxicating liquors” in the quoted section. That it did not apply to local option territory cannot be gainsaid, or ought not to be. I cite section 27 of the same act, wherein it provides as follows:

“This act, or any of the provisions thereof, shall not be construed to be in conflict with any local option law now or hereafter to be in force in this state, and no license to any retail liquor or retail malt dealer shall be issued or shall be effective at any • place where local option law is in force and operation.”

This expressly provides that this act shall not be operative in local option territory, and, not only so, the same provision of exclusion is made in section 18 and section 14 and section 9 and section 1 of this same Pitzhugh-Robertson act. But my Brethren in the Moreno Case transferred and applied the saloon license provisions in and to local option territory, in the face of the statute and the Constitution, which provide that the local option law shall prohibit sales of intoxicating liquors. The reasons for my dissent are stated in the Moreno Case, and I do not care here to review that matter, nor the reasoning for thatv dissent. I refer to it simply for this reason: That in another case in the same volume (Ex parte Townsend, supra) my Brethren sustained the act of the Legislature licensing sale' of nonintoxicating liquors in same territory. In the Moreno Case they held there were no nonintoxicating liquors in Texas, quoting the definition of intoxicating liquors above cited. If section 34 of Fitzhugh-Robertson act is applied to intoxicants in local option territory, then it was a matter of impossibility that there should be any nonintoxicating malt, vinous, or spirituous liquors. They would all be intoxicating, without reference to amount of alcoholic body contained. So we have another incongruity: The license act of nonintoxicating liquors upheld by my Brethren, in the face of the Moreno Case, which held there was no such thing in Texas as nonintoxicating liquor. I do not care to follow this further.

Then we have another singular anomaly. The statute under which appellant was indicted for pursuing the business without paying the license tax, and under which he was convicted and the judgment affirmed, was, as before stated, enacted in 1909. What is known as the Allison Bill was passed in 1913, found on page 125 of the Acts of the Thirty-Third Legislature, and, as amended on page 02, first called session, of Thirty-Third Legislature. Under the terms of the latter act, no shipment of intoxicants could be made into local option territory, providing a heávy punishment if such shipment occurred. Under the terms of the Allison Bill, the only way a party could get intoxicants would be to go into the wet territory, get the intoxicants, and carry same home in person. He could not' sliip it by common carriers. If this law is valid, and my Brethren hold in the recent case of Ex parte Muse, 168 S. W. 520, that it is constitutional, without specifying whether all of its provisions are or are', not constitutional, but in a general way held it constitutional, then it repeals the act under which appellant was convicted. If this act is constitutional, which prohibits the shipment of whisky into local option territory, then it necessarily repealed the license law for selling by soliciting orders. The two laws are absolutely incongruous, incompatible, and flatly contradictory, and the Allison Bill is the later act, and of course would supersede any prior conflicting legislation, if valid. The Allison Bill was in full force and effect for what it is worth at the time of the affirmance of the judgment. It is too well settled in Texas to be questioned now, both by statute and decision, that, where a law is repealed either at the time of the trial of a party or at the time of the decision of it in the appellate court, he is entitled to his discharge. It would be unnecessary, I think, to cite cases in support of this proposition at this late date.

I have mentioned these statutes to show the anomalous condition of legislation and decisions in regard to these various matters and how incongruous and contradictory all this legislation is and has been for some time. These different acts place the law of Texas certainly in. a very curiously absurd condition. In one act a citizen is authorized to sell whisky by paying the license, and in another act the same Legislature provides that if he does so sell he shall go. to the penitentiary as a felon. The saloon license act of the Legislature, which defines intoxicating liquors to include everything in which vinous, spirituous, or malt liquors enter as a compound or part, was held by the majority of this court to apply to local option territory in the face of the statute which expressly forbids, and then sustains the law licensing nonintoxieating liquors which does contain spirituous, vinous, and malt liquors. Then we have the Allison Bill, which wipes out and punishes for all shipment, and the af-firmance of the judgment in this case for failing to get his license to order and ship the ordered beer. These may be classed as the beatitudes of our jurisprudence on this subject. I cannot therefore concur with my Brethren: First, because the Legislature had no authority to license the sale of intoxicants in any form by soliciting orders or any other way in prohibition territory. It would be a violation of the local option law and punished as a felony to follow that character of business or occupation. Second, the Legislature' cannot tax nor license crime. And, third, appellant did not solicit orders from anybody, therefore did not violate the soliciting order statute, even if it was in effect and a valid law, and did not sell or offer to sell through orders or otherwise. Fourth, if, as a matter of fact or law, the Allison Bill is constitutional, it supplanted the other law, and appellant’s case should have been reversed and the prosecution 1 dismissed, because the law under which he was convicted was not in force at the time of the disposition of his appeal. I have not cited nor commented upon the recent decision of the Supreme Court reviewing this soliciting order statute, but I call attention to it. It will be found in State v. Texas Brewing Co., 157 S. W. 1166. Chief Justice Brown’s opinion in the ease is so clear and forceful that it may be said to be unanswerable. The views expressed in that opinion are in strict accord with what I have understood the law to be and decided since the first appeal reviewing the local'option clause of the Constitution of Texas. Judge Harper admits, in his opinion on rehearing in this case, that, if the license authorized the sale of intoxicants in the given territory, the law would be unconstitutional, but the Edmanson Case does not so hold, because in that instance the party under the testimony of many of . the witnesses was selling directly in violation of the local option law, and the judgment in that case was affirmed, not that he was violating the local option law, but that he failed to take out license to do so. I quote in this connection from. Judge Brown’s opinion:

“Under such license, it could, by solicitation or taking orders, sell and deliver intoxicating liquors in Clay county, because a sale implies a delivery of possession of personal property. Authority to pursue the business of selling intoxicating liquors in a county includes authority to deliver the liquor in that county, because the business could not be pursued if no sales were made, and no sale could be without delivery, actual or constructive. The words ‘by soliciting or taking orders’ do not limit the effect of the sale to pass title, nor do they exclude the delivery of the thing sold at the place where the business is pursued. Those words are descriptive of the method of selling. The local option law and the Constitution prohibited the sale of intoxicating liquors in Clay county, and the Legislature could not authorize the pursuit, by any method, of the business of selling such liquor there. The state cannot levy an occupation tax on a business that, being pursued, would be a violation of the l.aw and Constitution. Such license would not protect the licensee against prosecution for sales made under it.”

Of course that business would have to be pursued in the particular county where the prosecution was had, because the statute expressly provides that, before he can engage in that business, he must file with the county clerk of the county, in which the business is to be pursued, an application in writing for license to engage therein, and shall state the county or portion of the county in which the business is to be pursued, and, if within the corporate limits of any incorporated city or town, that fact shall be stated, etc. Judge Brown, commenting upon this phase of it, said:

“It is beyond all question that the license must have been issued by the clerk of the county in which the business was to be pursued, and the business of selling intoxicating liquors in ■Olay county, by any method, being unlawful, it was not the subject of taxation by the state or county.”

I have written the above on the lines indicated in my dissent, largely for the purpose of calling the attention of the Legislature to the condition of our laws and their incongruities, in obedience to the statute which requires the judges of the state to call the attention of the Legislature to such defects, conflicts, and incongruities as appear to be in the way or render inefficient the enforcement of the laws.

The information includes another count against appellant, charging him with a violation of the cold storage act of the Legislature of 1909, p. 53. But for the opinion written in the ease by the majority, I would hardly think that to be a serious question, but it seems to have been included in the decision. Briefly stated, the substance of the facts disclose that the club, of which appellant was a member, provided suitable means for storing their beer on ice for the purpose of preserving it while they were using it. It excludes the idea that any person had access to what is termed the cold storage, except the club itself or its members. It was not kept for any purpose, except to store and keep on ice the property of the club. No one outside of the club ever placed any commodity on the ice, nor was any one permitted to do so. Nothing was kept in the refrigerator, nor was any offer ever made to receive anything from outsiders to be kept for storage. It was limited in its purpose exclusively to the use of the members of the club or to the club itself. If this was a cold storage plant, within the meaning of the act of the Legislature, then, every refrigerator - could and would be a cold storage plant, wherever kept in ordinary business houses or in private families. The act of the Legislature of 1909, p. 53, provides that in all local option territory a party may pursue the business of keeping, etc., “what is commonly known as a ‘cold storage’ or any place by whatever name known or whether named or not, where intoxicating or nonintoxicating liquors or beverages are kept on deposit for others, or where any such liquors are kept for others under any kind or character of bailment (by paying) an annual state tax of two thousand dollars.” As before stated, the club provided a place for the keeping on ice of their beer. It was the beer alluded to in the former part of the opinion that was shipped in for the use of the members of the club on the terms and under the plans already detailed. The testimony excludes the idea that any outsider ever kept anything in storage on this ice. Our statute provides that words and phrases used in the Penal Code shall be taken and accepted in their commonly understood meaning, unless the Legislature shall give it a special definition. So we have the general statute which provides that the term “cold storage” shall be used and understood in its common and ordinary acceptation, but the statute did not stop there. It emphasizes the fact that it must be what is “commonly known” as a cold storage, or place where these interdicted matters are kept on deposit for others. The testimony excludes a violation of the cold storage act quoted. It was not kept for anybody except the club members, where the club had provided for storing their beer. I do not purpose to follow this matter to any great length, and will cite the case of Stewart v. Atlanta Beef Co., which was a Georgia case, reported in 93 Ga. 12, 18 S. E. 981, 44 Am. St. Rep. 119, by Judge Lumpkin of the Supreme Court of Georgia. Quoting from that opinion the following language is used:

“The obvious meaning of the phrase ‘doing a cold storage business’ is carrying on the business of storing commodities in a cool place for hire or reward. It would certainly not be contended that one who, for his own comfort or convenience, kept fruits, meats, or other perishable goods in a refrigerator, box, or room cooled artificially would be carrying on a cold storage business. It would make no difference* in principle if a person engaged in the sale of such articles kept them, for the purpose of preservation until sold, in such a room or other place. The real business thus conducted would be that of a dealer in such commodities, and the method employed for storing and preserving them would be a mere incident to that business. The business of storing for hire the goods of other people is of an entirely distinct character. The difference between the two classes of business indicated is very plain, and the proposition that a dealer in goods of any kind, who merely uses a cold storage receptacle for preserving his wares until sold, is not engaged in carrying on a cold storage business, is so manifestly beyond contention that, to pur minds, it does not admit of elaboration or discussion; and it is entirely immaterial what may be the size of the receptacle, room, or other place in which the goods are stored. We therefore are fully satisfied that the defendants in error were not liable to the tax imposed by the clause quoted in the first headnote, from the general tax act passed in 1890; it appearing beyond dispute from the evidence that these parties used the cold storage process for no other purpose than to preserve their own commodities, and that they did not receive or store, for hire or otherwise, any goods whatever for other persons.”

The statute under consideration in the quoted case imposed a tax upon all packing houses doing a cold storage business in that state, whether carried on by the owners thereof or toy their agents. This was a provision in the Georgia statute.

The cold storage article enacted by the Texas Legislature punishes only for a violation of the license act when the cold storage was kept for receiving deposits of others than the owners or interested parties in the cold storage. Neither appellant nor the club, or both combined, kept a “cold storage,” within contemplation of the terms of the act of 1909. This is so obviously so that it would need no discussion. Cold storage, as “commonly known,” means keeping such cold storage, as a matter of business for hire or reward, a receptacle for storing commodities and things of that sort belonging to others, and not to the owners of the cold storage.

Eor the reasons indicated, I have entered the above views as some of the reasons for dissenting from the majority opinion.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    EOFF v. STATE.
    (No. 3211.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.
    Rehearing Denied Nov. 11, 1914.)
    1. Ceiminad Law (§ 912%) — 'Triad—Stipulations — Effect.
    A stipulation, entered into between accused’s counsel and the prosecutor as to preliminary matters of proof, which were also matters of record, cannot, where accused, who was present, acquiesced in the stipulation, be questioned after verdict.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2136; Dec. Dig. § 912%.]
    2. Perjuey (§ 22) — Indictment — Sueei-ciency.
    Under White’s Ann. Code Cr. Proc. art 427, prescribing the form of oaths to be administered by the foreman of the grand jury or under his direction, an indictment, charg* ing perjury committed before the grand jury, which alleged that at the direction of the foreman one L. administered the oaths, as he was then and there authorized by law to do, is sufficient, though not alleging facts showing L.’s authority.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 71, 76-79; Dec. Dig. § 22.]
    Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    J. C. Eoff was convicted of perjury, and he appeals.
    Affirmed.
    J. M. Baldwin and Cunningham & McMahon, all of Bonham, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic ana section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of perjury, and his punishment assessed at two years’ confinement in the state penitentiary.

J. M. Baldwin was attorney for appellant on the trial of this cause. The record discloses that an agreement between counsel for the state and defendant was introduced in evidence on the trial of the case, appellant being present at the time. The facts agreed to were material and necessary to he proven on the trial of the case. After conviction, appellant employed additional counsel, and they in the motion for new trial complain that the court erred in admitting this agreement in evidence; appellant alleging that he was not consulted in regard thereto, that he personally had made no such agreement, and that, excluding the agreement, the evidence would not sustain a conviction. On the hearing on the motion for new trial the court heard evidence on this ground in the motion, and Mr. Baldwin testified:

“My name is J. M. Baldwin. I am an attorney at law, and was the sole attorney representing J. O. Eoff in the trial of this case at this term of the court. I made the following agreement with the district attorney, Mr. Lipscomb: ‘It is agreed that the February term of the district court of Fannin county, Texas, 1914, was duly organized on the 2d day of February, and that the grand jury for said term of court was duly organized with 12 men as required by law, with O. W. McLendon duly and legally appointed foreman of the grand jury, and that local option was in full force and effect in Fan-nin county,- Tex., prohibiting the sale of intoxicating liquors within said county, and has been since July 19, 1903.’ The defendant, J. C. Eoff, was not consulted and did not make any agreement whatever. The agreement was made in open court before the jury on the trial of the case, the defendant sitting present.”

Mr. Lipscomb testified:

“My name is R. T. Lipscomb, and I am the district attorney, and prosecuted the case • of which this defendant, J. O. Eoff, was convicted and has his motion for a new trial pending. The agreement was made with Mr. Baldwin, his attorney, in the presence and hearing of the defendant, in open court, and before the jury, with the understanding that the agreement be introduced and go in the record as evidence and before the jury as evidence in the trial of this case. The agreement I speak of is the one that was offered- before the jury.”

Appellant testified, admitting that he was present when these proceedings were had, but says he was not. consulted about the agreement, and did not authorize his attorney to make such agreement.

The agreement evidenced no matter that would tend to show that appellant was guilty of swearing falsely before the grand jury, but only evidenced some preliminary matters that were necessary to be proven. Appellant’s attorney having made the agreement in open court in his presence and hearing, and the agreement having been introduced in evidence without objection on the trial, it is too late to raise the question, as to such matter, after verdict, in a motion for new trial, when there is no allegation of improper motives actuating his counsel; for in such event, having been made in his presence and hearing, without objection, the law would imply his consent thereto. Had he at that time offered objection to the introduction of the agreement, it would be fatal to the conviction. But as the agreement related only to recorded matters of preliminary proof, and did not tend to show whether the testimony given, alleged to be false, was in fact untrue, objection comes too late after .verdict, when he at least had impliedly consented thereto at the time it was introduced in evidence. In addition to this, all the witnesses testified that the grand jury was in session and the oath duly administered to appellant. So that fact was amply proven by oral- testimony in addition to the agreement, and it is shown by circumstantial testimony, at least, that prohibition was in force by oral testimony.

The indictment alleges that appellant “did make his personal appearance to testify as a witness before said grand jury, and R. T. Lipscomb, under the direction of the foreman of said grand jury, as he was then and there authorized by law to do, did administer to the said J. E. Eoff the oath as a witness,” etc. It is contended that the “indictment alleges no facts showing that said Lipscomb had authority under the law to administer oaths.” It was unnecessary to allege any other fact than that the oath was administered by some person under the direction of the foreman. Article 427, White’s Ann. Proc.; Bailey v. State, 41 Tex. Or. R. 158, 53 S. W. 117; Barnes v. State, 152 S. W. 1043. Such allegation is sufficient in the indictment. On the trial the facts might show that no direction had been given by the foreman, or that the person whom the foreman had directed was one whom he could not authorize; but such facts do not appear in this record. On the other hand, it is affiirma-tively shown that the oath was administered by the district attorney under the direction of the foreman.

The evidence sustains the conviction, and the judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    WILLIAMS v. STATE.
    (No. 3267.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.
    Rehearing Denied Nov. 11, 1914.)
    1. Witnesses (§ 268) — Cross-Examination.
    In a prosecution for carrying a pistol at a supper and dance, evidence as to the presence of intoxicating’ liquor, drunkenness, pistol shots, and a cutting scrape there, drawn out on cross-examination of defendant’s witnesses, was admissible to show the occasion for the defendant having and presenting a pistol, and that he was the person who fired the shots, or one of them, though no witness swore who fired any of the shots, nor who was engaged in the cutting scrape.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]
    2. Witnesses (§ 268) — Cro^s-Examination.
    In a prosecution for carrying a pistol at a supper and dance, one of defendant’s witnesses having been asked if he saw a scuffle in the house over a Winchester rifle, and having answered in the negative, the county attorney asked him whether he saw one of the parties have a gallon of alcohol, and saw him lying on the floor drunk; whether he saw a cutting scrape there, and other things testified by other witnesses to have occurred, and as the witness answered each question in the negative, the attorney would ask, “That is one thing,” and then, “That is two things,” then, “Three things,” etc., “that occurred that you did not see?” Held, that the attorney did not thereby transcend the rules of permissible cross-examination.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]
    3. Criminal Law (§ 1163) — Appeal—Prejudice.
    That the county attorney persisted in asking questions that had been ruled out, while improper, was not ground for reversal in the absence of a showing of prejudice.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3090-3099; Dec. Dig. § 1163.]
    4. Criminal Law (§ 1171) — Appeai>-Mis-oonduct of County Attorney — Prejudice.
    Misconduct of the county attorney in argument will not work the reversal of a conviction unless the remarks are not only improper, but of such a material character as to injuriously affect defendant’s rights.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    5. Criminal Law (§ 1171) — Appeal—Misconduct of County Attorney — Bills of Exception.
    Where appellant’s bills objecting to misconduct of a county attorney in argument did not show the occasion for the argument, nor anything in connection therewith as a statement of facts approved by the judge to show the surrounding circumstances, the jury having assessed the lowest penalty, the argument, though improper, would not be held prejudicial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dee. Dig. § 1171.]
    6. Criminal Law (§ 1090) — Bill of Exceptions — Taking—Time.
    In a misdemeanor case, the only proper way by which the Court of Criminal Appeals can consider an objection to the court’s charge is by bill of exceptions thereto, taken at the time of the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2S27, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    Appeal from Brazos County Court; J. T. Maloney, Judge.
    Friday Williams was convicted of carrying a pistol, and be appeals.
    Affirmed.
    J. G. Minkert, of Bryan, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, P. J.

Appellant was convicted for carrying a pistol and fined $100, the lowest penalty.

Pat Gbeeves, a negro, gave a supper and dance one night at bis bouse. A considerable number of negroes attended. They bad intoxicating liquors there, and it seems one or more of them got drunk. , During the dance they had a cutting scrape in the house, and also a scuffle therein over a Winchester gun; they also had a scuffle over a Winchester in the yard. Pat Cheeves was trying to wrest the Winchester from the hands of another one of the negroes, claiming it was his. He and one.other witness testified positively that while this scuffling for the riflle was going on, appellant walked up to Pat, pulled his pistol, threw it down on him, and ordered him to let the gun alone, which he did, and went in the house. Just before this, two pistol shots were fired on the outside of the house. Several of appellant’s' witnesses swore that they were out there, saw the scuffle over the gun, and heard appellant order Pat to turn it loose, but they say they did not see appellant with the pistol at that time. Some of them say he did not have it, nor present it. That was a question of fact, however, which was solved against appellant by the jury.

The evidence as to the intoxicating liquor, drunkenness, pistol shots, and cutting scrape was drawn out by the state on cross-examination of appellant’s witnesses. Appellant has some bills of exceptions to the testimony of some of the witnesses as to the cutting scrape, hearing pistol shots, etc. His bills are very meager, and properly could not be considered, but in our opinion the evidence was admissible in cross-examination of appellant’s witnesses, as having a tendency to show the occasion for appellant having and presenting a pistol, and as tending to show that he was the party who fired the shots, or one of them, although no witness swore who fired any of the shots nor who was engaged in the cutting scrape. None of appellant’s bills, by any statement of what the evidence disclosed or did not disclose, approved by the judge as a statement of the facts, exclude the idea, nor do they tend to exclude it, that all of said testimony was not res gestee of appellant’s having and presenting his pistol. '

By another bill it is shown that in cross-examination of one of appellant’s witnesses, the county attorney asked him if he saw the scuffle in the house over the Winchester. He said he did not. He was also asked if he saw one of the parties have a gallon of alcohol and saw him lying on the floor drunk, and he said he did not. He was asked if he saw the cutting scrape, and he said he did not, and some other such things as were testified to as having occurred by other witnesses. As he would answer each question, the county attorney would ask, “That is one thing,” and then, “That is two things,” then, “Three things,” and then, “Four things,” etc., “that occurred that you did not see?” The witness would answer in the affirmative. We think all this was permissible cross-examination. Either side has the right to test the witnesses as to these various matters so that it can be shown what means of information and observation they had of the occurrences.

In some of his bills he complains that while the court sustained his objections to questions asked by the county attorney, the county attorney persisted in asking them, notwithstanding the ruling of the court. This, of course, was improper conduct on the part of th'e county attorney and the court should have enforced his rulings, by whatever fine or penalty against the county attorney necessary to do so, but not having done so, we think this presents no reversible error, and shows no injury to appellant that would require a reversal.

Appellant has two other bills 'complaining of the argument of the county attorney. He did not ask the judge, in writing or otherwise, to instruct the jury to disregard the county attorney’s argument. In some respects we think it was improper. This court, long ago, in Pierson v. State, 18 Tex. App. 564, said:

“It has become quite common to except to the remarks of counsel for the state in their addresses to the jury. We find such exceptions in the majority of contested cases that come before us. If we had sustained all these exceptions, the effect would have been to have virtually closed the mouths of prosecuting attorneys. While argument should be restricted legitimately, it should not be so unreasonably limited as to render it ineffectual. The state has rights in this respect as well as defendants. And in view of the frequency of exceptions of this character, we will take occasion here to say that before we will reverse a conviction because of remarks of prosecuting counsel, it must clearly appear to us: (1) That the remarks were improper; and (2) that they were of a material character, and such as, under the circumstances, were calculated to injuriously affect the defendant’s rights.”

In Tweedle v. State, 29 Tex. App. 591, 16 S. W. 545, on this subject, this court said:

“Concede that this argument was improper, it does not follow that the judgment should be reversed for this cause. The remarks must not only be improper, but they must be of such a nature as would be clearly calculated to prejudice the rights of the defendants. To reverse in all cases where counsel fail to confine themselves to the record would render trials farces. There is hardly a case of any importance tried but that during the progress of the trial some unguarded expression is used by counsel upon either side. It would be a remarkable coincidence if this were not true. House v. State, 19 Tex. App. 227; Bass v. State, 16 Tex. App. 62.”

See, also, the following cases: McConnell v. State, 22 Tex. App. 354, 3 S. W. 699, 58 Am. Rep. 647; Young v. State, 19 Tex. App. 536; Frizzell v. State, 30 Tex. App. 42, 16 S. W. 751; Rahm v. State, 30 Tex. App. 310, 17 S. W. 416, 28 Am. St. Rep. 911; Tipton v. State, 30 Tex. App. 530, 17 S. W. 1097; Lewis v. State, 29 Tex. App. 201, 15 S. W. 642, 25 Am. St. Rep. 720; Walker v. State, 28 Tex. App. 503, 13 S. W. 860; Love v. State, 35 Tex. Cr. R. 29, 29 S. W. 790.

Appellant’s bills on this subject do not show the occasion for the county attorney’s argument, nor anything else in connection with the case as a statement of facts, approved by the judge to show the surrounding circumstances. Under the circumstances we think the matter presents no reversible error. The jury assessed the lowest penalty against appellant.

Appellant, in the court below, in no way excepted to the charge of the court, nor did he ask any special charge. For the first time in his brief, just filed, he complains of one paragraph of the court’s charge. It is the settled law of this state that in misdemeanor cases the only proper way this court can consider an objection to the charge of the court is by bill of exceptions thereto taken at the time of the trial. Nothing of the kind was done in this case. Hence we cannot review his complaint of the charge of the court

There being no reversible error, the judgment is affirmed.