The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1885-06-19
Loughlin was then and there under
thA Qpa of 01 uaara y afn

the age of q years." etc.
The first assignment Of error Ques.
tions the sufficiency Of the Indictment
The third assignment OF errors ques.
tions the correctness of the courts &C.
tlon in excluding the evidence of one
Moore, to the effect that he was then
and had been before tho alleged sale to
Mclaughlin, a bar-keeper in The defen-
dant's saloon; that he knew defendant
had repeatedly refused to sell intoxi.
eating liquors to minors; that 1t was q
regulation of defendant in his business
as a retail liquor dealer not to sell
liquor to minors, and that defendant
had instructed witness, as one of his
bar-tenders, and the other employees
In his saloon, not II sell liquor to
minors. and that defer liant had placed
on the wall, in conspl cuous place on
the inside OF the s1loon, notice
painted in large lette rs that minors
were not permitted ~ come in said
saloon. This evidence was excluded
upon objection made by the county
attorney.
The ninth assignment questions the
sufficlency Of the eviA once to sustain
the judgment. opiniol oy Wilson, j.
There is no doubt In n minds as To
the sufficiency of the In ictment. The
offence created by ART le 376 of the
Penal Code is in no mo ner connected
with, relating to, or de sndent upon,
the offences declared H. the two pre-
ceding articles. It is an offence sepa-
rate and distinct from, and indepen-
dent of any other. The words in said
article "any other person bear no re-
lation whatever to either of the two
preceding articles. They mean simp-
ly "another person" thai the person
who sells, etc., the liquor. To illustrate
our construction of the ar Gle, we will
arrange Its words thus: "Any other
person who shall know ely sell or
give, or cause to be sold o. given any
spurious, vinous or into1 eating liqu-
or to another person under the age of
q years, etc. This we til nix, is the
plain meaning and intent Of the arti-
Gle. If, as commended by COZ lsel for de-
fondant, the words "any other per-
son" should be construed to mean
some person who Is not me toned in
either of the two precedin articles;
that is, some person other Il an an In
dian Of the wild and unfriendly tribes,
and other than an Indian of the ChOc-
taw or Chickasaw Territory, it would
be, in effect, holding that tle Legis.
lature which enacted these provisions
was either careless in expressing the
Legislative intent, or that they were
ignorant Of the usual mode Os express
ing such intent in such cases. II such
had been the legislative intent, the
usual firm OF expressing IL would
have been thus: off any 9th II person
shall sell, etc., to any otht { person
Nh fhnua NJ nd In hn fuys
ing articles" etc. Our under landing
persons who are under the age of 81
years, whether they be Indians or per-
sons of any other race, nation atty or
sex. If the sale, ETC., be to an Indian
under the age OF Il years, two offences
are committed by the same nc,, and
the person guilty thereof may Oe COLI
victed and punished for either. These
being our views, we hold t. Vt the
court did not err In owe ruling
the exceptions to the indie ment.
To constitute the otfense of VIII n de-
fendant was convicted it must be made
to appear by the evidence in SOM way
that at the time he sold, gave o. bar
tered the liquor to the minor, ne knew
the fact that the person to when he
sold, etc., was under the age OF q
years. knowledge of this fact b. the
defendant at the time of the act, is rs
essential to constitute this otiense as
fraudulent intent at the time of TAX
ing property is to constitute the crime
OF theft. The fact of knowledee may
be proved like any other fact, by cir
cumstances; but iC must be pro1ed in
some way before it can be said tina
the law has been violated. The fact
that the defendant sold the liquor 70
person under the age Of q years doas
not, of itself, prove, as Is contended by
counsel for the State, that he knew
such person was minor. Counsel
for The State advances this PROPOSE
ton: "When the truth of fact has
been proven, ali persons will be pre-
sumed to have known the
truth until the contrary APP
pears" And under this prop
osition he contends that the State hav-
ing proved the minority of the person
to whom the liquor was sold, had
made prima facle case Of guilt sginst
the defendant, No authority Is cited
in support of the proposition and
argument, nor have we been able TO
find any such authority. The rule con-
tended for would perhaps be applicable
In case where the statute creating the
offense does not require that the for
hidden act should be knowingly done;
but 1t is certainly not applicable where,
as in this case, knowledge OF the fact
OF minority on the part of the defend.
ant IL an affirmative matter which con-
stitutes an essential element of the
otfense, and must be alleged and
proven. Mr.. Bishop says: "Where the
statute Is silent as to the defendants
intent or knowledge, the indictment
need not allege or the governments
evidence show, that he knew the fact;
his being misled concerning it Is mat
ter for him to set up in defense and
prove. Quite different are the law and
procedure where the statute has the
word "knowingly" or the like; knowl-
edge is then an element in the crime;
the indictment must allege It
and the evidence against the
defendant atirmatively establish
its existence" Dish. Stat. Or,
section 1922, In creating this oflense
our statute uses the word "knoW-
ingly," and 1t is, therefore, an essen
tial element of the otfense that the de-
PENDANT knew at the time he sold the
liquor that the purchaser thereof WAS
under the age OF q years. This knowl-
edge must, Therefore, not only be al
legged, but must be afiirmatively prov
en-. (Presler VS.. State, 10, CT. App. 95.) In
the record before as there is not one
particle Of evidence that the defendant
had knowledge OF the minority OF the
person TO whom he sold the liquor, IL
Is in proof that such person was lit
tie past l6 years OF age at the time de-
fendant sold him the liquor. 1t Ia sub
mitted by counsel for the State that
the court should take judicial notice of
physical facts such as that boy of
l6 years of age would not ordinarily
appear to be OF the age of q years aud
that this physical appearance was suf-
tioient evidence on the part of the
State to prove knowledge on
the part of the defendant
Of the homage of the pur-
chaser. Mr.. Wharton says: GAS a
general rule a court in making up its
is TO take no notice Of
facts not in evidence. In the Roman
law this maxim, as held by the CLASH
cal Jurists, IL understood rs preclud-
ing the iudex from allowing his judg-
ment 10 be influenced by any facts
which are the proper objects OF evil
dence but which are not put in owl