Shipley v. State , 84 Tex. Crim. 278 ( 1918 )

Appellant was convicted of violating the local option law, his punishment being assessed at a fine of $25 and twenty days imprisonment in the county jail.

It is charged in the complaint and information that appellant, on or about the 9th day of March, 1918, sold to Mayfield intoxicating liquors, after an election had been held by the qualified voters of Rains County in accordance with law. It does not recite at what time the election for local option was held, whether before or after the law punishing the sale of liquor was made a felony. Motion was made to quash for this reason, and also motion in arrest of judgment. Both were overruled, and this is the question presented for revision. The decisions draw the distinction between the preliminary motion to quash and the motion to arrest judgment. The motion to quash should be sustained as being one of form and not of substance. The cases recognize this difference above stated. Under the decisions of this court the motion to quash should have been sustained. Stone v. State, 84 Tex.Crim. Rep., 206 S.W. Rep., 940, this day decided. For this reason the judgment is reversed and the cause remanded.

Reversed and remanded.

ON REHEARING. January 15, 1919.