rehearing">

ON REHEARING.

October 5, 1921.

LATTIMORE, Judge.

In its motion for rehearing the State urges that the great weight of authority is in favor of the proposition that the burden of proof is on the accused to show himself to be within the exceptions, when the prosecution is under a statute such as the one under consideration, and that we were wrong in holding in our original opinion that the burden of proof was upon the State. We have carefully examined the authorities cited and many others. While the exact question is without precedent in this State, we are led to believe that the contention of the State should be upheld.

In pistol carrying cases it was held under the law as same formerly was in this State, that the exceptions contained in the statute must be negatived in the indictment, but that such negative need not be proved by the State, the burden being on the accused to show himself within such exception. State v. Duke, 42 Texas, 455; Summerlin v. State, 3 Texas Crim. App., 444; Leatherwood v. State, 6 Texas Crim. App., 247; Lewis v. State, 7 Texas Crim. App. 567; Blair v. State, 26 Texas Crim. App., 387.

In cases for selling liquor without' license, this court seems to have always held that the indictment must aver a sale without license but that the burden of proving license is on the accused. Lucio v. State, 35 Texas Crim. Rep., 320; Milam v. State, 66 Texas Crim. Rep., 249.

Where the accused has been charged with selling liquor to a minor, while the holding is that the indictment must negative the fact of such written consent, the burden of showing that he had same is on accused. Reynolds v. State, 32 Texas Crim. Rep., 36; Jones v. State, 12 Texas Crim. Rep., 108; Kuhn v. State, 34 Texas Crim. Rep., 85; Sec. 1261, Bishop on Statutory Crimes.

*136 Where the facts necessai-y to support such negative averment lie peculiarly within the knowledge of the accused, the burden of proving-same is cast on him. Joyce on Intoxicating Liquors, Sec. 686; Wharton’s Crim. Law, Sec. 1790; Greenleaf on Ev., 2nd Ed., Vol. 3, Sec. 24; Best on Evidence, Secs. 341-342; Underhill on Crim. Evidence, Sec. 24; Rice on Crim. Evidence, Vol. 2, pp. 425-426; Bishop on Statutory Crimes, Secs. 1280-1281; Black on Intoxicating Liquor, p. 597; 12 Cyc, pp. 381-382; 16 Corpus Juris, Sec. 535; Jones v. State, 13 Texas Crim. App., 1. These authorities cite many others in other states in support of their conclusions. While the analogy of the principle laid down is not exact when applied in the instant case, still rightly understood we believe same strengthens the view that the burden of proving himself within an exception, such as is contained in the Dean law and which relates almost entirely to the purpose of the accused in doing the act charged, should be placed upon the accused. Proof that one is a peace officer, — that another had license to sell liquor, — and that yet another had written consent to sell liquor to a minor, would not seem to be so peculiarly within the knowledge of the accused as the fact that he was making, selling, transporting, etc., liquor for medicinal, sacramental, etc., purposes. All these authorities seem to agrefe that the burden of proof is on the accused in the classes of cases for which the reason given would appear to be less strong, and this argues forcibly the reason for applying the rule in the class of cases where the reason appears greater, as in the instant case.

We have concluded that we were in error in our opinion on this point, and that the trial court committed no error in instructing the jury that the burden of proof was upon the appellant as to the matters contained in said exceptions. As the case was reversed solely on this error and we find no other in the record, the motion for rehearing of the State will be granted, the judgment of reversal set aside, and the cause affirmed.

Affirmed.

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