Bashara v. State , 84 Tex. Crim. 263 ( 1918 )

ON REHEARING.

November 20, 1918.

PRENDERGAST, Judge.

Appellant’s attorney, in his motion for rehearing, says that he did not contend in his motion in arrest of judgment that the penalty for violation of said statute prohibiting the sale -of intoxicating liquors in prohibition territory should have been alleged in the indictment and that he does not like for such contention on his part as in effect so stated in the original opinion to be madé history. The court in stating the first ground in his motion in arrest of judgment in the original opinion may have misunderstood him on this point and incorrectly'stated his position. In deference therefore to what he says, any expression in the original opinion'which indicates that he may have made such a contention is withdrawn. Of course, this- court does' not desire to put him in a false attitude and had no intention of doing so.

In his motion in arrest of judgment for the claimed insufficiency of the indictment he did not claim that the order of the Commissioners Court declaring the result of "said election” instead of declaring the result of "said vote,” that the prohibition law was not thereby put in force. He did make such a claim in his brief. We did not notice it in the opinion because we thought it was too hypercritical to require mention. He renews that contention in his motion for rehearing and says, “We concede that'this contention is drawing a fine point, nevertheless the issue is drawn, and it should not be passed over lightly.” He cites article 5721 of the Revised Civil Statutes, which directs that the Commissioners Court at the time specified shall open the polls and count the votes and if the majority are for prohibition that the court shall immediately make an order declaring the "result of said vote” and absolutely prohibiting the sale of intoxicating liquors, etc. Neither in fact nor in law under this statute is there any distinction or difference between declaring the result of said "election” and declaring the result of said “vote.” Declaring the result of said election could mean nothing else then declaring the result "of said vote.” Mr. Branch in his 1 Branch’s Ann. P. C., p. 689, in prescribing a form of indictment under the prohibition statute instead of using the words "declaring the result of said vote,” uses the words "declaring the result of said election.” The use of the words "declaring the result of the election” instead of the words "declaring the result of the vote” was wholly immaterial. Besides, if there could have been anything in this point the statute requires that unless the election should be contested by suit brought in the District Court within thirty days after the election, the declaration of the result by the Commissioners Court is conclusive on all courts. Rev. Stats., art. 5728.

Neither is there anything in appellant’s contention that it was necessary for the State to prove that in making the alleged sale of intoxicating liquors the appellant must be shown to have done so for the purpose of evading the law. The indictment alleged and the State proved a direct and unlawful sale which, was all that was necessary to either allege or prove on this point.

The motion is overruled. Overruled.