Fleming v. State

Full title: O. D. FLEMING, Appellant, v. The STATE of Texas, Appellee.

Court: Court of Criminal Appeals of Texas

Date published: Nov 23, 1966

408 S.W.2d 510 (Tex. Crim. App. 1966)

Opinion

408 S.W.2d 510 (Tex.Crim.App. 1966) O. D. FLEMING, Appellant, v. The STATE of Texas, Appellee. No. 39448. Court of Criminal Appeals of Texas. November 23, 1966

Benton Musslewhite, of Musslewhite & Musslewhite, Lufkin, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

DICE, Commissioner.

The conviction is for unlawfully selling whisky in a dry area; the punishment, a fine of $200.

Trial was had and notice of appeal given prior to January 1, 1966.

Our able state's attorney does not seek an affirmance of the conviction, because the state failed to prove that appellant made the sale of whisky in Cherokee County, a dry area.

The record reflects that while it was stipulated that Cherokee County was a dry area, the state's proof failed to show that appellant sole the whisky in Cherokee County.

In violations of laws adopted by local option elections, the locus of the offense is an integral part of the proof. Teal v. State, 159 Tex.Cr.R. 289, 263 S.W.2d 260; Warren v. State, 164 Tex.Cr.R. 544, 300 S.W.2d 953.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.