Lewis v. State , 73 Tex. Crim. 16 ( 1914 )

The affidavit and information charge that on or about July 21, 1913, appellant "did then and there unlawfully sell intoxicating liquor to Walter Blackman, after the qualified voters of said County of Hill, Texas, had determined at an election, held in accordance with the laws of the said State of Texas, that the sale of intoxicating liquors should be prohibited in said Hill County," etc. It will be noticed the date of the election is nowhere stated. The sale is alleged to have occurred on 21st day of July, 1913, long subsequent to the enactment of the felony statute as a punishment for violating the local option law. This question is raised but not in such way as can be considered in the light of the decisions of this court. These will be found collated in Nobles v. State, 71 Tex.Crim. Rep., 158 S.W. Rep., 1133. The writer would suggest that in view of the fact that local option may be punishable according to the time at which the election was held as a misdemeanor or felony, it would save much trouble and many questions if the indictment or information would charge the day, month and year on which the election was held. This would avoid complications. It would prevent those questions coming before this court on appeal. If the election was held subsequent to the passage of the felony statute, the County Court would not have jurisdiction; if the election was held prior to the passage of that law, the County Court would have jurisdiction, and it is well enough to avoid these complications by stating the date of the election.

The statement of facts fails to show that a local option election was held at any time, and in fact it is entirely silent as to whether or not local option was ever in effect. In this attitude of the record the judgment must be reversed. The statement of facts can not be added to or changed. The certificate of the judge is conclusive of the correctness of the statement of facts. Branch Crim. Law, 43.

There is another question, as to the name of the alleged purchaser. His real name is Blackburn. Some of the witnesses say he is sometimes called Blackmon or Blackman. To avoid any trouble of this sort it would be well enough to prepare new pleadings and charge the real name of the party.

The question of agency is raised in the case. The court failed to charge on it; exception was taken and a special requested charge refused submitting this issue. Upon another trial this charge should be given.

The judgment is reversed and the cause is remanded.

Reversed and remanded.