#### ANDERSON v. STATE.

No. 18629.

Court of Criminal Appeals of Texas.

Dec. 9, 1936.

State’s Rehearing Denied Feb. 24, 1937.

H. J., Bernard and B. L. Palmer, both of Houston, for appellant.

K. C. Barkley, Cr. Dist. Atty., and A. H. Krichamer, Asst. Dist. Atty., both of Houston, and E. F. Fruechte, Atty. Texas Liquor Control Board, and Lloyd W. Davidson, State’s Atty., both of Austin, for the State.

LATTIMORE, Judge.

Conviction for selling liquor in a package permit store on Sunday; punishment, a fine of $100.

Section 25 of art. 1, chap. 467, Acts Second Called Session, 44th Legislature (Vernon’s Ann.P.C. art. 666 — 25), reads as follows: “No sale or delivery of liquor shall be made on or from the premises of the holder of any permit (except upon the prescription of a duly licensed physician) : **** * On Sundays.”

The information against this appellant charged her as follows: “Did on Sunday * * * sell liquor to A. M. Douglass on said premises so known as and located: * * * in the city of Houston, Harris County, Texas, * * * the said package store permit so issued being then and there in full force and effect.”

The exception observed in the quoted part of the statute above is in no way negatived. In our opinion, the information is fatally defective.

It has been the rule in this State without exception, so far as we have been able to observe, that where an offense is defined by statute, all the essential elements of the offense must be alleged in the indictment. We quote from the syllabus in Rice v. State, 37 Tex.Cr.R. 36, 38 S.W. 801, as follows: “Where the statute creating an offense, in the body thereof, or as a part of the enacting clause, contains-an exception so that the one cannot be read' without the other, the exception must be negatived in the indictment. And, if the exception itself be incorporated in the general clause, then the party relying on the general clause must, in pleading, state it, together -with the exception.”

This rule has been followed uniformly. See Thweatt v. State, 49 Tex.Cr.R. 617, 95 S.W. 517; Brown v. State, 74 Tex.Cr. R. 498, 168 S.W. 861; Reeves v. State, 88 Tex.Cr.R. 444, 227 S.W. 668; Ford v. State, 105 Tex.Cr.R. 114, 286 S.W. 1089.

We are not unaware of the fact that section 9, art. 1, of said chap. 467, supra (Vernon’s Ann.P.C. art. 666 — 9), provides in general terms that it shall not be necessary for any information, *259complaint, or indictment to negative any exception contained in this act concerning any prohibited act, etc., but this court has uniformly held that where the exception is written in the body of the law, and, as said in some of the cases, is made part of the enacting clause of the statute itself, we cannot give application to the terms of section 9, supra. The exception is so clearly made part of the offense, and is so plainly written into the very definition and description of the offense as that one cannot be read without the other. It would have been comparatively easy for the Legislature to have put the exception in a separate clause, or to have written it in a separate place so as that we would not be compelled to hold it an essential part of the definition of the offense, but as we find it we do not feel privileged to strike down the great number of decisions written by this court and by our illustrious predecessors, hence our holding as above indicated.

The judgment will be reversed and the prosecution ordered dismissed.

On Motion for Rehearing.

HAWKINS, Judge.

Through the district attorney of Harris county, the State has filed a motion for rehearing in which it is urgéd that we erred in holding that the exception contained in the defining clause of the statute under consideration should have been averred.

We take occasion here to call attention to our opinions in Whitmire v. State, 94 S.W. (2d) 742, Privitt v. State, 98 S.W. (2d) 204, Kelly v. State, 98 S.W. (2d) 998, and others following those named, in which we pointed out the averments necessary to charge a violation of certain provisions of the Texas Liquor Control Act, in what is called “Dry Area,” and approved the forms of some indictments. No point was made in such cases of a failure to negative exceptions in the defining clauses under which the prosecutions arose, and our attention was directed solely to the necessary averments to plead that the act complained of occurred in “Dry Area.” In charging offenses where exceptions are found in the enacting or defining clause, pleaders for the State should also observe the rules suggested in our original opinion.

The State’s motion for rehearing is overruled.