1. Selling Liquor Without License — Charge — Assuming a Fact.
On a trial for selling intoxicating liquor without paying the tax and obtaining a license, where the order of the County Commissioners' Court, in proper form, levying the tax has been introduced in evidence, the court did not err in assuming, in the charge, that the tax had been regularly levied. The proper construction of the order was a matter for the court, and not the jury.
2. License Which Fails to Indicate the House in Which Occupation is to be Carried On.
Where it appeared that defendant had paid the tax and obtained license to sell intoxicating liquors in the county, but the license did not indicate the house where the business was to be carried on; and the proof was, that defendant had two adjacent houses, a "saloon" and a "grocery store," in both of which he had put up a bar, and sold liquor in both. Held: That he could not be convicted under an indictment for selling without license.
3. Same — Designation of Place of Sale — Selling in House not Indicated in License.
Under the facts stated in paragraph 2, ante, where it further appeared, that defendant had posted his license in his "saloon," in which he also sold liquor by the drink. Held: That this was tantamount to a designation of the house in which he was licensed to make the sales; and, that as to sales made in his "grocery store," he should have been indicted and prosecuted for the sale of liquors at another place than that designated in the license; and he should be so indicted for everyday in which he made such sale.
HENDERSON, JUDGE.
Appellant in this case was tried in the County Court of Red River County, under an indictment charging him with selling intoxicating liquors in quantities of one gallon or less, without first having procured a license therefor. He was convicted, and fined the sum of $450, and from the judgment of the lower court he prosecutes this appeal. Appellant contends that the court should have given his special charge asked on the question of venue. As we read the record, we do not see that any issue was raised by the testimony as to the pursuit of the occupation of a liquor dealer in Red River County. The appellant himself testifies to the fact, and the charge asked was unnecessary. Nor was it necessary that the record from the County Court should have shown that all of the members of said court were present when the order levying the county tax was passed. The order shows that the same was done by the court, and it will be presumed that the action of the court was regular. We think that the court rightly assumed in his charge that the County Commissioners' Court had levied a tax of $150 for the county on the occupation of liquor dealer. The order of the County Commissioners' Court was before the court and was regular. No objection was made to the same, and it showed the levy of the tax; and, in our opinion, the proper construction of this order was a matter for the court, and not for the jury. The most serious question presented in the consideration of this case is whether or not, under the facts proved, appellant was properly indicted for pursuing an occupation without having paid the tax therefor. Appellant contends that he had paid the license occupation tax for selling intoxicating liquors in quantities of a gallon and less than a gallon in Red River County, Tex., and that he should not have been indicted for selling liquor without a license, but, if an indictment would lie under the proof in the case against him for any offense, it would be for selling intoxicating liquors at another place than that designated in the license. The proof in this case shows that the appellant paid the State and county tax on the occupation of selling intoxicating liquors in quantities of one gallon and less than one gallon in Red River County, and that he did pursue said occupation at the town of Detroit, in said county, and had his license posted up. It will be observed, however, that the license did not, as is required by law, indicate any particular house in which said liquors should be sold. The proof further tended to show that appellant owned two houses in said town of Detroit, that were situated adjacent to each other. One of these was designated as "his saloon," and the other was designated as "his grocery store." The proof also tended to show that he had a bar in each of these houses, and sold intoxicating liquors in each. While it is true, as above stated, the license itself did not designate the house where the liquors were to be sold, yet, by establishing his bar in the saloon house, calling it "saloon," selling liquor there by the drink, and posting his license in said house, the appellant as effectually designated the house in which he was to pursue said occupation as if it had been named in the license; and we believe, if he was prosecuted for selling liquor without a license in said house, that it would be a sufficient answer on his part that he had paid a license tax, and that he had so designated his place of business, but it would constitute no defense to him for selling liquors in another house. If, however, he sold intoxicating liquors in another house or place than that designated, of what offense would he be guilty? It is true, he would be selling liquor in such other place without having a specific license for the sale of such liquors; yet he did have a license for the sale of liquor in Red River County and in the town of Detroit. In such a state of case, it seems to us that his act in selling in such other place than that designated would come under the provision of the law with reference to the sale of intoxicating liquors at another place than that designated in the license. In such a case the punishment for said offense is different from that provided for the sale of intoxicating liquors without a license. Instead of the punishment being for the amount of the tax, or double that amount, it is by fine of not less than $50 nor more than $100, or imprisonment in the county jail from ten to thirty days, and each day of such sale in such other place is made a distinct and separate offense; and, in our opinion, the appellant in this case should have been indicted and prosecuted for the sale of liquors at another place than that designated in the license, and he should be so indicted for every day in which he made such sale. Because the proof in this case does not respond to the charge in the indictment, the judgment of the lower court is reversed, and the case is remanded.
Reversed and Remanded.