Cutler v. State , 131 Tex. Crim. 405 ( 1936 )

CHRISTIAN, Judge.

Conviction for a misdemeanor; punishment being assessed at a fine of $100.

Omitting the formal parts, the counts of the complaint and information on which the conviction was based read as follows: “In the County of Coleman and State of Texas, I. W. Cutler did then and there unlawfully sell to E. W. Fowler one pint of whisky (Tom Hardy brand) of liquor in a dry area, to-wit, in the County of Coleman and State of Texas.” . It is not sufficiently alleged that the sale of intoxicating liquor had been prohibited in Coleman County. It should have been averred that an election to determine whether the sale should be prohibited had been held under an order of the commissioners’ court for that purpose. Also it was essential to allege that the commissioners’ court canvassed the election returns and declared the result. Again, an essential averment was that the result had been published as required by the law in force at the time of the election. See Jack Kelly v. State, Opinion No. 18,585, delivered November 18, 1936 (reported on page 318 of this volume).

The judgment is reversed and the prosecution ordered dismissed.

Reversed and prosecution ordered dismissed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.