Opinion
No. 19104.
Delivered June 16, 1937.
1. — Intoxicating Liquor — Evidence.
To support conviction for unlawfully possessing whisky for sale in dry area, proof must show that local option was in force in the county mentioned in indictment.
2. — Same.
In prosecution for unlawfully possessing whisky for sale in dry area, where no evidence appears in the record to the effect that a local option election was ever held in county, or the result of such election, or that the result was declared and declaration published, the evidence was insufficient to support conviction.
Appeal from the County Court of Wise County. Tried below before the Hon. Harlan Brown, Special Judge.
Appeal from conviction for unlawful possession of whisky for the purpose of sale in a dry area; penalty, fine of $100 and confinement in county jail for fifteen days.
Reversed and remanded.
The opinion states the case.
Sampson Sampson, of Decatur, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The conviction is for the unlawful possession of whisky for the purpose of sale in a dry area; penalty assessed at a fine of $100.00 and confinement in the county jail for a period of fifteen days.
Bill of Exception No. 1 complains of the action of the court in overruling the appellant's motion for an instructed verdict of not guilty based upon the ground that the State failed to make out a case as charged against appellant by reason of the fact that there is no proof that Wise county was a "dry area" at the time of the commission of the offense. Our examination of the record fails to reveal any evidence to the effect that a local option election was ever held in Wise County, or the result of such election, or that the result was declared and the declaration published. The decisions of this court are unanimous to the effect that in a conviction for violation of the local option law the proof must show that local option was in force in the county mentioned in the indictment. See Cunningham v. State, 102 S.W.2d 413; Stewart v. State, 102 S.W.2d 416; Humphreys v. State, 99 S.W.2d 600; Green v. State, 101 S.W.2d 241.
A discussion of the other matters presented is pretermitted for the reason that they are not likely to occur upon another trial.
Because of the insufficiency of the evidence to support the conviction, the judgment is reversed and the cause remanded.
Reversed and remanded.