Tex.) (248 S.W.) Criminal law 1144(17)-Where no bills of exception or statement of facts, court will presume facts justified heaviest penalty. On appeal from a conviction for burglary, the Court of Criminal Appeals will presume the existence of facts to justify assessing the heaviest penalty permitted upon conviction for ordinary burglary, where no bills of exception nor statement of facts appeared. Appeal from District Court, Grayson County; F. E. Wilcox, Judge. Albert Crisman was convicted of burglary, and he appeals. Affirmed. larity of the proceedings, where there were no bills of exception nor statement of facts. Appeal from District Court, Grayson County; F. E. Wilcox, Judge. Albert Crisman pleaded guilty of burglary, and he appeals. Affirmed. R. G. Storey, Asst. Atty. Gen., for the State. HAWKINS, J. Upon his plea of guilty to burglary, appellant's punishment was assessed at two years in the penitentiary. Notwithstanding the plea of guilty, the record is before us on appeal. No statement of facts and no bills of exception appear. Everything must be presumed in favor of the correctness of the judgment and the regu R. G. Storey, Asst. Atty. Gen., for the larity of the proceedings. State. HAWKINS, J. Upon conviction for burglary, punishment was assessed against appellant at 12 years in the penitentiary, No bills of exception appear in the record, CRISMAN v. STATE. (No. 7646.) and no statement of facts accompanies the (Court of Criminal Appeals of Texas. Feb. 14, transcript. Nothing is before us for review. Notwithstanding the heaviest penalty permitted upon conviction for ordinary burglary was assessed against appellant, we must presume the facts justified it. The judgment must be affirmed. CRISMAN v. STATE. (No. 7644.) (Court of Criminal Appeals of Texas. Feb. 14, 1923.) 1923.) Appeal from District Court, Grayson County; F. E. Wilcox, Judge. A. Crisman was convicted of theft, and he appeals. Affirmed. R. G. Storey, Asst. Atty. Gen., for the State. MORROW, P. J. The conviction is for theft; punishment fixed at confinement in the penitentiary for a period of two years. We find neither statement of facts nor bills of exceptions; nor is there any fundamental er Appeal from District Court, Grayson Coun- ror revealed by the record. ty; F. E. Wilcox, Judge. A. Crisman was convicted of theft, and he appeals. Affirmed. R. G. Storey, Asst. Atty. Gen., for the State. LATTIMORE, J. Appellant was convicted in the district court of Grayson county of theft, and his punishment fixed at two years in the penitentiary. The record is before us without statement of facts or bills of exception. The indictment sufficiently charges an offense, and the instructions of the court seem to be in accordance with law. The judgment will be affirmed. CRISMAN v. STATE. (No. 7645.) (Court of Criminal Appeals of Texas. Feb. 14, 1923.) Criminal law 1144(2, 17)-Everything presumed in favor of correctness of judgment and regularity of proceedings, where no bills of exception nor statement of facts. On appeal everything must be presumed in favor of the correctness of judgment and regu The judgment is affirmed. Ex parte FAISON. (No. 6895.) (Court of Criminal Appeals of Texas. Feb. 14, 1. Constitutional law 208 (3)-Licenses Acts 37th Leg. 1st Called Sess. (1921) c. 52, amending Highway Department Law 1917, § 16 (Vernon's Ann. Civ. St. Supp. 1922, art. 70122), so as to except farmers' trucks from the provision for registering and paying license fees for commercial motor vehicles, is class legislation, contravening Bill of Rights, art. 1, § 3. 2. Constitutional law 62-Highway law amendment delegates power of suspension. Provisions of Acts 37th Leg. 1st Called Sess. (1921) c. 52, amending Highway Department Law 1917 (Vernon's Ann. Civ. St. Supp. 1922, art. 70122), authorizing the highway commission to issue licenses generally for trucks with greater loads than named in the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes original highway law of 1917 (Vernon's Ann. Civ. St. Supp. 1922, art. 70122). We quote a part of said section: act, on roads which the commission, after investigation, is satisfied will warrant it, and to issue special license to a truck for heavier loads on any road, delegate power to suspend a law in contravention of Const. art. 1, § 28. 3. Statutes 123 (7)—A subject in amend-cultural purposes, fire engines, road rollers, ment of highway law not in title. "Vehicles not Subject to Registration.Trucks or tractors used exclusively for agri steam shovels, and other road building and agricultural machinery shall not be required to be registered; provided that nothing in this section shall be construed to exempt from this act motor vehicles, trailers, semi-trailers, and tractors used for road building purposes and privately owned; provided that trucks used exclusively for agricultural purposes shall be Const. art. 3, §§ 35, 36, inhibiting ingrafting by amendment on a law, or writing into a law originally any subject not comprehended by the title of the act, is violated by Acts 37th Leg. 1st Called Sess. (1921) c. 52, § 3 (Vernon's Ann. Pen. Code Supp. 1922, art. 820zz), the subjects in the title being the amendment of one section and the repeal of two other sec-registered by horsepower as is now provided tions of the Highway Department Law 1917, as amended, and said section 3 as to speed on highway of commercial motor vehicles being on a different subject. for registration of automobiles and shall be subject to all the provisions of this act, except the payment of annual license fees." Original habeas corpus proceeding by J. H. places trucks and tractors used for agriFaison. Relator discharged. Love & Rutledge, of Dallas, for relator. State. LATTIMORE, J. J. H. Faison, hereinafter styled relator, was arrested upon a war-posed that such persons, in matters properly rant issued out of justice court of precinct No. 1 of Dallas county for a violation of the law relating to the operation of commercial motor vehicles on public highways, which is found in chapter 52, General Laws 1st Called Session of 37th Legislature. Relator in the usual form alleges his illegal arrest and detention, and attacks the constitutionality of said law by appropriate averments. This paragraph of the law in question cultural purposes on a different footing before the law from similar trucks and tractors used for commercial and other purposes, and, while the Legislature may differentiate between citizens following different occupaforbiddance, this is because it is to be suptions without breach of the constitutional discriminated between, will be engaged in acts and business substantially different, and upon which difference may be based the right to receive at the hands of the lawmakers different treatment; but when classes of persons or occupations which are really and substantially the same are treated differently by a law upon the camouflage of a name This court hesitates under any circum- under discussion deals with roads and roadonly, the courts will not permit it. The act stances to strike down a law enacted by the using vehicles, and the effect of their use legislative branch of our government, and upon the roads, and in our opinion it may not has had much concern over this attack upon call trucks and tractors which are exactly a law manifestly intended to protect the similar in construction, character, and effect whole people in their use of the public high-in usage upon highways, agricultural impleways of this state, as against what is becom- ments, and subject to one classification in ing a serious matter both to highways and one clause of the law, and call them commerto citizens who pay for and use them for or-cial vehicles and subject to another classidinary traffic. The progress of legislation fication in the next clause thereof. A farmsince the enactment in 1917 of the law creat-er's tractor or a dairyman's truck may carry ing our highway commission in this state, or pull a load of such weight as to grievousin its successive efforts to adequately regu-ly injure a highway upon payment of a small late the use of highways for commercial pur- license fee under this statute, while the poses by heavy vehicles, is interesting, and indicates a realization of the seriousness of the problem referred to. We have withheld announcing our conclusion upon this matter to such time as the representatives of the people are in session, so that there might be speedy action after this decision looking to the enactment of proper laws safeguarding the highways and defining the rights of the various users thereof. [1] The law in question is obnoxious to that provision of our Constitution prohibiting class legislation. Section 3, art. 1, Bill of Rights. Chapter 52 presents the enactment of an amendment to Section 16 of the same weight, vehicle, or load, if used in a commercial transaction, would be prohibited entirely or made to pay a much heavier fee for license. seems too plain to need further argument. That this is class legislation of said law. In said amended section 16 we [2] Attention is also called to other parts find the following: "No motor vehicle shall be licensed under this act whose net carrying capacity is greater than eight thousand pounds, provided that the offand care of any certain highway may make cers or persons charged with the supervision written application to the state highway commission, asking that motor vehicles having a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Tex) (248 S.W.) "No power of suspending laws in this State shall be exercised except by the Legislature or its authority." It will be observed that the words "or its authority" are no longer a part of the fundamental law of our state, and as held by this court in Ex parte Coombs, 38 Tex. Cr. R. greater carrying capacity than named in this act be permitted to operate on and over the highway specifically named in the application; and the state highway commission shall after investigation and finding the highway named in the application of sufficient construction to carry without material injury a load greater than that named in this act, then the state highway commission shall have the authority to issue to owners of motor vehicles a license authoriz-648, 44 S. W. 854, and by the Supreme Court ing a greater load than named in this act. Said license shall state the amount of load that may be carried and also the section of highway over which said motor vehicle may carry such excess load." of this state in McDonald v. Denton, 63 Tex. Civ. App. 421, 132 S. W. 823, this repealed any authority to delegate its power theretofore existing in the Legislature. [3] It might be further observed concern The plain effect of this is to remove the ing the provisions of said chapter 52 under discussion, that the caption of the bill enactmaximum limit upon truck loads at the pleasing said chapter seems to include three subure of the highway commission, and to dele-jects, viz.: The amendment of section 16, gate to such commission authority to grant the repeal of section 16a, and the repeal of to any truck operator, no matter how heavy section 4-all referring to chapter 131, Genhis load or vehicle, the right and permission eral Laws Regular Session 37th Leg to so operate same upon public highways, islature. In the body of the bill enacting in which event he could not be penalized said chapter 52, in addition to the three subunless he exceeded the extra weight, etc.,jects named in the caption, there appears fixed by the officers of the highway commission. In other words, without specifying under what named conditions, the unlimited power of grant of permission to operate with heavier loads than those named in the statute is given to the highway commission. In this connection we call attention to another clause in said act, which is as fol lows: section 3, which in nowise relates to, is part of, or is connected with, either of the sections named in the caption as affected by said bill. We also note that section 3 of chapter 131 of the General Laws Regular Session 37th Legislature, which this new section 3 of the amendatory chapter 52 pur ports to amend, was itself inserted in said chapter 131 without notice in the caption, or "Anything to the contrary notwithstanding, without being embraced in the subjects upon application in writing to the state high-named in said caption. Sections 35 and 36 way department, said department in its discretion may issue a special permit to the owner or operator of any vehicle allowing heavier or wider loads than named herein, to be moved or carried over and on the public highways and bridges. They may also issue such special permit to increase the permissible weight per inch of width of tire. Such permits shall be in writing and they may limit the time and use of operation over the said highways and bridges which may be traversed and may contain such special conditions and provisions and require such undertaking or other security as the said department shall deem to be necessary to protect the public highways and bridges from injury, or provide indemnity from any injuries resulting from such operation. All such special permits shall be carried in the vehicle to which they refer and upon demand shall be open to inspection of any peace officer or employee charged with care or protection of pub-thority. lic highways." A casual reading of this quotation seems to make patent the fact that it is so obnoxious to section 28, art. 1, of our Constitution denying to the Legislature the right to delegate power to suspend a law, as to require no analysis. Said section of the Constitution in terms provides that no power of suspending laws in this state shall be exereised except by the Legislature. As this provision was in the Constitution prior to the adoption of the one now in force in this state, it read: of article 3 of our Constitution expressly in- Manifestly a law having for its named purpose the amending of specific sections of a former law, the carrying into effect of which expressed purpose appears in the body of the law in sections 1 and 2 of such amendatory act, may not then proceed to enumerate other sections which would thus become a part of the original act sought to be amended, which other sections are not included in the caption or drawn within the law by reason of being enlargments of, or changes in, those sections whose amendment is made the subject of the title of the amendatory act in question. If section 16 of this chapter be unconstitu Robt. M. Lyles, of Cameron, for appellant. R. G. Storey, Asst. Atty. Gen., for the State. tional for that it is class legislation and reflects an effort on the part of the Legislature to delegate power to the highway commission, and if section 3 of said act be obnoxious to the constitutional inhibition against HAWKINS, J. Appellant is charged in. the appearance in the body of an act of mat- the first count in the indictment with unlawters substantially variant from the purposefully selling intoxicating liquor to one C. A. of the act as expressed in its caption, then Caninenberg, and in the second count with there would seem to us little need for a dis- unlawful possession of such liquor for the cussion of the application of section 6 of purpose of sale. Both counts were submitted said chapter 52 (Vernon's Ann. Civ. St. Supp. to the jury, and a conviction resulted under 1922, art. 701221), which in terms provides the second count. that the holding of any part of this law unconstitutional shall not affect the remaining tion that the evidence is insufficient to supparts. port the conviction. In determining this The act in question was held unconstitu- question, it is necessary that we look largely tional by the honorable Court of Civil Ap-to the evidence introduced by the state. We peals at Dallas, Tex., in July, 1922, in the case of Lossing v. Hughes, No. 8856, 244 S. W. 556, which we have not yet seen in print. For the reasons mentioned, the contention of relator is upheld, and his discharge is or-quiry of him. The details of the conversation dered. The case is before us on the sole conten find therefrom that four young men, Caninenberg and three others, desired to purchase whisky. They went to the home of Howard Smith, a brother of appellant, and made in between the proposed purchasers and Howard Smith were not gone into, but it appears from the testimony of one of the boys that Howard Smith stated he did not have any, but would "put us on to some." Another one of the boys stated, "We did not get any whis(Court of Criminal Appeals of Texas. Feb. 14, ky at Howard Smith's, because he did not Ex parte WOFFORD. (No. 6896.) 1923.) have any there; said he had just taken it Original habeas corpus proceeding by Ed. down to his brother's, or his brother-in-law's Wofford. Relator discharged. Love & Rutledge, of Dallas, for appellant. LATTIMORE, J. This is a companion case to Ex parte J. H. Faison (No. 6895) 248 S. W. 343, this day decided, and, for the reasons therein set forth, the prayer of relator is granted, and it is ordered that he be discharged. SMITH v. STATE. (No. 7380.) (Court of Criminal Appeals of Texas. Feb. 7, 1923. Rehearing Denied March 7, 1923.) -something like that." Howard Smith and his wife got in the car with the boys, and they drove some 10 or 12 miles to what was understood by the boys to be Tobe Smith's house. When they reached there Howard Smith got out of the car and talked to appellant, then returned to the car and told the boys it was all right, whereupon they all got out and went to the back of the house. Appellant brought from the smokehouse a five-gallon jug containing whisky. A twogallon jug, a quart fruit jar, and funnel were produced, and appellant and his brother (Howard Smith) poured the whisky out of the five-gallon jug and measured it into the two-gallon jug. They used the quart jar to measure with, pouring from the five-gallon 1. Criminal law 1159(1)—Issue of fact de-jug into it, and from it into the two-gallon termined by jury not disturbed on appeal. Where the jury have settled an issue of fact, it will not be disturbed on appeal. 2. Intoxicating liquors 236(7)-Evidence held sufficient to support conviction of possession for purpose of sale. In a prosecution for unlawful possession of intoxicating liquors for the purpose of sale, evidence held sufficient to support a conviction. Appeal from District Court, Milam County; John Watson, Judge. Tobe Smith was convicted of unlawful possession of intoxicating liquor for the purpose of sale, and he appeals. Affirmed. jug by means of the funnel. The two gallons were to be divided among the purchasers according to the quantity each paid for. One of them paid Howard Smith $10 for his part by means of a check, another one paid him $5 in money, still another handed $2.50 to appellant, who passed it on to Howard Smith. It can hardly by questioned, we think, that the state of facts related made out against appellant a case for the possession of whisky for the purpose of sale. The boys were seeking to purchase whisky; they were taken by Howard Smith to a place where appellant had possession of a five-gallon jug of it, and from this a sale of two gallons was made. Appellant offered evidence to defeat the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) Upon appellant's defense against the charge for unlawful possession of intoxicating liquor for the purpose of sale, the court gave, at appellant's request, the following special charge: "If you believe from the evidence that the defendant held possession of intoxicating liquor as alleged, and had and held possession of 22 gallons thereof for Howard Smith, and it was Howard Smith's purpose to sell said whisky, said possession of said 22 gallons on defendant's part would not be possession for the purpose of sale, unless you believe from the evidence beyond a reasonable doubt that he knew of said intention on the part of Howard Smith." state's case. He testified that he and his say that, although appellant claims to have wife went from his home to visit his brother frequently bought liquor from the Mexican, Howard Smith; that, as he went through he could not give his name, and apparently Thrall, he met a Mexican from whom he had had made no effort to find him. The record bought whisky on previous occasions, who shows that Howard Smith had pleaded guilty offered to sell him some in five-gallon quan- to the sale of this whisky. Mrs. Howard tities; that appellant told him he (appellant) Smith testified to having seen her husband could not handle that much himself, but give the $20 to appellant to purchase the would let him know later; that he went on same. She also testified about the trip she to his brother's, where he spent the night, and her husband made with the proposed and reported to him that they could buy five purchasers from their house to Lovelace's gallons of whisky for $40 if he (Howard where the whisky was secured, that she reSmith) would take one-half of it; that they mained in the car while they had gone both went to Taylor the next day, and there around the house to get the whisky, and saw the Mexican and agreed to take the that Mrs. Tobe Smith came to the car and whisky; that appellant and his wife expected talked to her while they were getting it. to spend the next night with his brother-inlaw, Monroe Lovelace, and made arrangements with the Mexican to meet them on the road after night at "Kingman's gate" and deliver the whisky at that point; that his brother gave him the $20 to pay for his part of the whisky; that appellant and his wife started to Monroe Lovelace's and when they reached the point at which they had agreed to meet the Mexican he was already there; that appellant paid him the $40 and took the five-gallon jug of whisky to his brother-inlaw's and put it in the smokehouse; that some time during the night his brother and other parties came there; and his brother told him he wanted to get two gallons of his part of the whisky; that Lovelace furnished the two-gallon jug. Appellant admits that he assisted in transferring the whisky from the five-gallon jug to the two-gallon jug, but denied that be had any interest in the two gallons that was sold, and that one-half gal-sufficiency thereof is the only question prelon was left of his brother's whisky in the five-gallon jug. He disclaimed any interest in the sale of the whisky or that he knew it was going to be sold until it was measured out and the money began to change hands. He said some one handed him some money, but he did not notice how much it was, and immediately passed it on to Howard. He denied receiving anything from the sale of the whisky; said he had no claim in it and made no claim to the proceeds; that when he left Lovelace's he put the other half gal-erly based, a different question would be prelon belonging to his brother in a fruit jar and left it at Lovelace's. Mrs Tobe Smith testified that she saw Howard Smith give appellant $20 with which to purchase whisky before she and her husband left Howard Smith's house on the night in question. and also testified to receiving the five-gallon jug of whisky from a Mexican at some point on the road to Lovelace's. Appellant testified that the Mexican was at the point agreed upon when they reached there. Mrs. Smith does not so remember it, but says they had reached the point and were working on their car when the Mexican drove up, and that he run his car up by the side of theirs and the transfer was made. It may be pertinent to [1, 2] This charge was certainly as favorable to accused upon that point as he was entitled to, and the jury determined that issue in favor of the state. We have set out somewhat at length the evidence, because the sented for consideration. We think it cannot be doubted that the testimony of the state made out a case authorizing a conviction. The jury, being the sole judges of the credibility of the witnesses and of the weight to be given to their testimony, had a right to accept or reject the defensive testimony offered. Where they have settled an issue of fact, we are not authorized to disturb the finding. If there was no evidence in the record upon which a conviction could be prop sented. After a careful examination of the statement of facts, we cannot say the jury was without evidence to support the conviction. They may not have believed the defensive testimony relative to the manner in which the five-gallon jug of liquor was ob tained, or they may have disbelieved appellant's statement that he had no knowledge that the whisky of which he was in possession was to be sold. They had an opportunity to hear the witnesses as they testified, to observe their manner, and are in a much better position to pass upon questions of fact than this court can possibly be. Having settled the matter in favor of the state, our duty clearly calls for an affirmance |