Sadler v. State , 48 Tex. Crim. 507 ( 1905 )

This is a conviction for unlawfully keeping open a saloon on election day. The election was held in order to elect trustees for the independent school district of Velley Mills, by virtue of article 185, Penal Code.

Appellant insists that the verdict of the jury is not supported by the evidence is this, that there was a failure to give a legal notice of the election, as required by law, although the election was held under the forms of the law. The law requires the notice for such election to be posted in three public places. This character of notice was not given, but the notice was published in a newspaper. To support appellant's contention he cites us to Neimann v. State, 74 S.W. Rep., 558; Miller v. State, 69 S.W. Rep., 522; Reuter v. State, 67 S.W. Rep., 505. The cases cited appear to support appellant's contention. However, an examination of these authorities shows that all of said cases hold, a void election can be urged as defense against a prosecution of the character here under consideration. This election is not void, but merely voidable; that is, there are mere irregularities in the election. Where this is the case, the same will not be a defense for keeping open a saloon on election day. See Cooper v. State, 26 Texas Crim. App., 575; Janks v. State, 29 Texas Crim. App., 233; and Geib v. State,31 Tex. Crim. 514. All of these authorities cited hold, that where the election is under the usual forms of law, mere irregularities will not vitiate the election, and authorize the conviction of appellant for keeping open a saloon on election day. The election here under consideration being merely irregular, we do not think appellant's defense is meritorious, and the judgment is affirmed.

Affirmed.