Truesdale v. State

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

In his brief, appellant contends that the court should have quashed the complaint and information because it alleges "that the commissioners court of said county had duly made * * * its order declaring the result of such election, and absolutely prohibiting the sale of intoxicating liquors within said commissioners precinct, as required by law," etc., appellant's contention being that the commissioners court had no authority to absolutely prohibit the sale of intoxicating liquor in their order of prohibition and declaration of the result. We have heretofore held that it does not invalidate the order putting local option in force if it fails to recite the exceptions under which intoxicants might be sold, to wit, for medicinal and sacramental purposes. The law engrafts these exceptions, and it is not necessary that the order should allude to the matter. Chapman v. State, 37 Tex.Crim. Rep.; Bruce v. State,36 Tex. Crim. 53. Nor do we think that the mere fact that the order absolutely prohibits the sale of intoxicating liquor invalidates the order, since the Legislature did not authorize the commissioners court to absolutely prohibit the sale of intoxicating liquors, and the word "absolutely" will be treated as surplusage; and the order being within the purview and authority of the statute, will be upheld. It follows, therefore, that the information is good and the court properly overruled the motion to quash. Appellant's contention is that the case of Steel v. State, 19 Texas Criminal Appeals, 425, is decisive of the question. In that case we held that the commissioners court had no power under the law to order an election to determine whether or not the gift or exchange of intoxicating liquors should be prohibited. That is a different question from the one here. The Constitution authorizes the local option law to prohibit a sale, and the Legislature passed laws in compliance with the constitutional provision authorizing counties and subdivisions of counties by direct vote of the people to prohibit the sale of intoxicating liquor, and the commissioners court would not have authority as indicated above, to order an election other than as provided by the Legislature. Clearly where the election is properly held, and the quashal of the information is urged because it contains the word "absolutely" prohibit, the same must be construed in the light of the statute and legislative object and intent of the law.

The regularity of the local option election, the publication of the orders, etc., were discussed in Truesdell v. Bryan, 1 Texas Court Reporter, 40, and correctly holds that this local option election is valid.

In bill number 1 appellant complains "that Hon. E.R. Bryan, the county judge of Midland County, who tried this case, is disqualified from sitting in or trying this case, on account of being one of the contestees in the contest proceeding now pending in the District Court of Midland County, Texas, to contest the validity of the local option election under and by virtue of which election this prosecution is being had and maintained." In Clark v. State, 23 Texas Criminal Appeals, 260, we held: "The fact that the title to a schoolhouse was vested in the county judge in his official capacity, for the use of the county, could not disqualify him to preside over a trial for defacing the schoolhouse, hence the motion to transfer this case to the District Court was properly overruled." Nor do we think that the county judge as a mere formal party to an application to contest the validity of a local option law under the statute regulating such matters would per se disqualify him from trying appellant who is charged with violating the law which is being contested. See Code Crim. Proc., art. 606, and White's Ann. Code Crim. Proc., sec. 649.

Bill number 2 complains that the court permitted the orders for the local option law to be introduced in evidence in the trial of this case. The gravamen of the objection seems to be, as indicated in the bill, that appellant and various other parties had filed an application to contest the validity of the election, and had given written notice to the county judge and to two of the commissioners of their intention to contest said election, and had delivered to said commissioners and county judge a written statement of the grounds on which they relied to sustain said contest. These matters would not be any legal objection to the admissibility of the orders in this case.

In bill number 3 complaint is made that the State offered in evidence, for the purpose of showing why the order declaring the result of the local option election was not published for four successive weeks after the date of said order, the order of the district judge granting a temporary injunction restraining the publication of said order, and the order of said judge dissolving said temporary injunction. To the introduction of this evidence defendant objected, for the reason that the granting of said temporary injunction was illegal, and afforded no legal excuse for the failure to publish the order declaring the result of said election for four successive weeks, as required by law; and further objected to the introduction of said orders without introducing the pleadings upon which they were based, for the reason that said orders were unintelligible without said pleadings to explain them; and for the purpose of explaining said orders, as a part of the record in connection with said orders, defendant offered in evidence the pleadings upon which said orders were based. The court overruled defendant's objection to the introduction of said orders, and permitted them to go to the jury and refused to permit defendant to introduce in evidence the pleadings upon which the orders were based. There was no error in the rulings of the court. The State had a right to introduce the order granting the temporary injunction restraining the publication of said local option election; and also had a legal right to introduce the order of the judge dissolving said temporary injunction. The pleadings upon which these orders were predicated were not material evidence, nor calculated to throw any light upon the proceedings, and hence the court did not err in refusing to admit the same. In McDaniel v. State, 32 Texas Criminal Reports, 16, we held that, on a trial for violating the local option law, where it appeared after the order declaring the result of the election had been published for three successive weeks, an injunction was sued out restraining and prohibiting its further publication, and after the dissolution of said injunction, the order was published for another week, that the publication was sufficient and for four successive weeks in contemplation of the statute. Then it follows that the State would have the right, as indicated above, to introduce the reason for failing to publish the order for four successive weeks as contemplated by the statute, and the injunction would be sufficient legal reason for not so doing.

We have carefully reviewed appellant's other assignments, and find no error authorizing a reversal. The judgment is affirmed.

Affirmed.

[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]