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by language that conveys a precise and unmistakable meaning to that effect, and not by language from which the meaning must be sought by argument, inference or deduction.

"It was held by the court below that if the Webb-Kenyon law did not enable a State absolutely to prohibit all shipments of liquor into its territory, when the liquor was intended for any purpose, the WebbKenyon law was but a re-enactment of the Wilson law. With this view we do not concur. By the Wilson law the resale by the consignee was the only thing prohibited, leaving the carrier free to transport liquor into the territory of a prohibition State, either for purposes made lawful or unlawful by the laws of such State. The Wilson law affected interstate commerce, and divested commerce in liquor of its interstate character only to the extent of subjecting it to the State law and of depriving it of its right of resale after delivery to the consignee, and left the carrier under the protection of the commerce clause of the Constitution for the rest of the interstate transaction. Under this protection the carrier could import liquor into a prohibition State, whether the intended use of the liquor was lawful or unlawful. In fact, under this protection a carrier could import liquor into a prohibition State, with full knowledge that upon arrival at destination and delivery to the consignee it was intended by him to be received, possessed, sold or otherwise used in violation of the laws of that State. This was the mischief intended to be remedied by the Webb-Kenyon law, as this was the state of the law after the enactment of the Wilson law and after the decision of the Supreme Court in L. & N. R. R. Co. v. Cook Brewing Co., 223 U. S., 70, 32 Sup. Ct. Rep., 189, 56 L. Ed., 355, decided January 22, 1912, and the state of the law when the Webb-Kenyon bill was introduced in Congress and finally enacted on March 1, 1913.

"To remedy this evil and to aid the States in preventing the shipment of liquor for unlawful purposes, the Webb-Kenyon law attempted a very different thing from what the Wilson law did, and by clear expression withdrew or attempted to withdraw from the carrier of liquor intended for unlawful purposes the protection it theretofore had, and afforded the States a means by which they could more effectively reach and prevent the violation of their liquor laws, when liquors were imported for the purpose of the violation of those laws.

"The great volume of cases that record the controversies that for nearly a century have revolved about the commerce clause of the Federal Constitution disclose that, whatever deviation there may have been in some of its rulings, to one principle the Supreme Court of the United States has uniformly, consistently and steadfastly adhered, as a fixed and established principle of constitutional government, extending to and binding alike upon the governments of the States and of the United States, and that principle is that, under the commerce clause of the Federal Constitution, the Federal government has absolute and exclusive control over commerce between the States, that over interstate commerce the Federal government is supreme, and that any interference by State government, that amounts essentially to a regulation of com

merce among the States, is repugnant to the Federal Constitution and is void. In the exercise of its control over interstate commerce, the Federal government, through Congress, may limit commerce between the States, which otherwise shall be free, or it may restrict it in certain features, or prohibit it altogether in certain commodities. When this is done by Congress it is valid. If attempted by a State, it is void. For these reasons it is admitted that, prior to the enactment of the WebbKenyon law, the State of Delaware could not have validly enacted a statute making it unlawful to ship liquor from another State into a prohibition district of this State for any purpose, such an act being beyond its own power and not being sanctioned by Congress either express or implied. But by the Webb-Kenyon Act, Congress expressed its sanction to such a law as the State of Delaware might desire to enact, prohibiting the shipment of liquor from other States into certain districts of this State when it was there to be received, possessed, sold or used in violation of the law of this State. Upon authority of this Act the State of Delaware enacted the Hazel law prohibiting with like intent the shipment of liquor from other States into prohibition districts of this State, there to be used for unlawful purposes. To this extent the Hazel law is valid, if the Webb-Kenyon law is valid. But the State of Delaware went further, and by the same law prohibited the shipment of liquor from other States into prohibition districts of this State, there to be used for purposes recognized by the Act itself to be lawful. For this much of the Hazel law the State of Delaware was without authority of its own and without the aid of the Webb-Kenyon Act, for the Webb-Kenyon Act did not prohibit, nor did it authorize the State to prohibit the importation of liquor into a prohibition territory, when the liquor was intended for a lawful purpose. The Hazel Act, therefore, in so far as it prohibits the shipment of liquor from another State into a prohibition district of this State, when the liquor is not intended to be received, possessed, sold or in any manner used in violation of the laws of this State, but is intended for a lawful purpose, is an enactment without constitutional authority, and when invoked in such cases, amounts to an interference with interstate commerce, and is therefore void."

If section 4 of the Allison law should be held to apply to shipments of liquor from one State to another State for personal use, then the opinions of every court of last resort which have been called upon to pass on that question, would hold that section inoperative and void; but we did not at the time of writing the original opinion, and do not now think the Legislature intended that section 4 should apply to interstate shipments, but they adopted a separate and distinct section as applicable to such shipments and legalized and authorized such shipments for personal use.

The motion for rehearing is overruled.

Overruled.

PRENDERGAST, PRESIDING JUDGE.--In my opinion section 5 of

the Allison Act has no application whatever to this case, but section 4 thereof has exclusive application, and this prosecution was based exclusively on section 4. I think I have demonstrated this in my dissenting opinion, and also that section 4 without any doubt applies, and was intended to apply, to deliveries of interstate shipments.

If any "court of last resort before which the interstate shipment of intoxicating liquors has come, has held that a State is powerless to prohibit interstate shipments of intoxicating liquors for personal use,” this was before the passage of the Webb-Kenyon Act, and can have no application to such a question since then. The decisions of the United States Supreme Court, before the Webb-Kenyon Act, held that no State could prohibit the interstate shipment and delivery of such liquor, even where expressly shipped and delivered for a known unlawful purpose as well as for any lawful use or purpose, as demonstrated by the opinion of the Supreme Court of Delaware in the Van Winkle case, so fully quoted from, but no such decision has been rendered by the United States Supreme Court since the Webb-Kenyon Act. The decisions before are wholly inapplicable now.

The said Delaware case was rendered under a statute of that State very different from the Allison Act, and is inapplicable to this case because thereof.

In my very thorough search I have found no case from any other State appellate court, and I think none can be found, holding that a State can not constitutionally regulate how and when a person in dry territory can get liquor from without the State for his personal use, and that no court of any other State, with such a statute as the Allison Act, has ever so held, or ever will so hold, since the Webb-Kenyon Act was passed, and I have found no such decision so holding even before then, and I think there is no such decision.

I dissent from the opinion on rehearing and the disposition of the motion.

D. LEGION BEDFORD V. THE STATE.

No. 3278. Decided October 28, 1914.

Rehearing denied November 18, 1914.

1.-Swindling-Evidence-Knowledge of Defendant-Rebuttal.

Where, upon trial of swindling in borrowing money and giving a lien on a certain city lot, the State showed that prior thereto the defendant had already sold the lot to another party, and defendant contended that the money on said prior deal had not been paid him, and that he did not know that the deed he gave the first party had been placed on record, etc., there was no error in permitting the State to show in rebuttal that defendant had received full payment on the first deal, and that his deed to said lot was delivered to the first purchaser and placed on record, and that the defendant knew these facts.

2.-Same-Evidence-Other Offenses-Rule Stated.

Where the issue is with what intent the alleged act complained of was

done, proof of another offense is admissible as direct evidence against the accused.

3. Same-Suspension of Sentence-Evidence Credibility of Witness.

Upon trial of swindling, where defendant had filed his application asking a suspension of sentence in the event he was convicted, there was no error in permitting the State, on cross-examination of defendant, to show that he had been indicted for several offenses, although testimony as to a prior conviction for forgery in which the judgment was set aside and the indictment dismissed was not proper evidence; however, no specific objection having been urged thereto, and the court properly limiting said testimony, there was no reversible error.

4. Same-Charge of Court-Requested Charge-Intent.

Where, upon trial of swindling in obtaining money on a certain city lot, the evidence showed that the defendant had made a prior conveyance thereto to another party, and defendant claimed that he had received no consideration on said first deal, which was rebutted by the testimony of the State, a special instruction that the jury could not consider the deed from defendant to the first party as evidence of guilt was correctly refused, the court having submitted the question of intent in his general charge; which also covered another refused requested charge by the defendant.

5.-Same--Charge of Court-Objections.

Under the law as it now is, this court can not consider objections made to the charge of the court after it has been submitted to the jury or after verdict; besides, the exception thereto was too general, and the criticism that it was upon the weight of the evidence was not borne out by the record.

6. Same-Charge of Court-Amended Motion for New Trial.

Where appellant in his amended motion for new trial complained of the charge of the court, but there was no fundamental error to show that appellant had not received a fair and impartial trial, there was no reversible error.

7.-Same-Sufficiency of the Evidence-Record Evidence Oral Testimony-Harmless Error.

Where defendant was charged with swindling in obtaining money upon a city lot which he had conveyed prior thereto to another party and received the money thereon, all of which was shown by oral testimony upon the trial without objection, a complaint in the motion for new trial that the conviction was not supported by the evidence, under which complaint in appellant's brief it was claimed that the note and deed of trust given by appellant to the party alleged to have been swindled had not been introduced in evidence, nor the deed from defendant to the first purchaser, which was borne out by the statement of facts, yet as the record was replete with oral evidence of the contents of these instruments to which no objection had been made, there was no reversible error.

Appeal from the Criminal District Court of Harris. Tried below before the Hen. C. W. Robinson.

Appeal from a conviction of swindling; penalty, not less than two nor more than three years imprisonment in the penitentiary. The opinion states the case.

Green & Boyd, for appellant.-On question of proof of other offenses: Hill v. State, 44 Texas Crim. Rep., 603; Welhousen v. State, 30 Texas Crim. App., 623.

On question of admitting evidence of former offenses: Haney v. State, 57 Texas Crim. Rep., 158, 122 S. W. Rep., 34.

C. E. Lane, Assistant Attorney General, for the State.

HARPER, JUDGE.-Appellant was prosecuted and convicted of swindling, from which judgment he prosecutes this appeal.

It is alleged that appellant represented to Thomas Engates that he was the owner of lot No. 8 in block No. 3 of the Sweeney Addition to the City of Houston, and borrowed from him $50, agreeing to give him a note for $75, payable in sixty days, and secure the payment of the note by giving a deed of trust on said lot in said block, which instruments he executed and delivered to Engates at the time he received the money from him. The basis of the alleged swindle is that appellant did not at said time own the lot on which he gave the deed of trust, and had no right to give a lien thereon.

The State proved by Ned Powell that he had bought from appellant this identical lot-lot 8, in block 3-and paid him $75 for it prior to the time appellant gave Engates the deed of trust thereon. That appellant, at the time he, Powell, paid him the money delivered him a deed to this lot, which he placed of record in Harris County. This was all the State offered to prove by Powell. After the State had closed appellant testified and introduced testimony tending to prove that while he did execute the deed to Powell, he did not deliver it to him, and Powell did not at that time pay him the money; he said he delivered the deed to one Emmett Neal to be kept until Powell paid the money, when he, Neal, was to deliver the deed to Powell; that Powell had never paid the money, and he did not know the deed had ever been delivered; that he had been informed that instead of the deed being delivered to Powell it had been destroyed, and he was under that impression when he gave the deed of trust to Engates. So it is seen, it became a material question whether or not the money had in fact been paid by Powell, and whether in fact appellant knew the deed had been delivered to Powell at the time he gave the deed of trust. After appellant had testified as above stated, and introduced such corroborative testimony as was at his command, the State recalled Powell in rebuttal, and he testified that at the time he purchased the lot in question he paid appellant in full for it, borrowing $37.50 from Neal, and the deed was delivered to Neal to be held by him until he paid Neal the $37.50; that he paid this $37.50 the next day, when the deed was delivered to him by Neal, and he had it placed of record, and on the question of whether or not appellant knew the deed had been delivered or not, Powell was permitted to testify that some two weeks after the deed had been delivered to him and he had placed it of record, he approached appellant and told him that he had learned the title to the lot was not good, and demanded back his money, and appellant had agreed to give him another lot in lieu thereof, which he had never done.

Appellant objected to this latter testimony on the ground that it was

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