The evidence is, therefore, insufficient to support the conviction. See: Gribble v. State, 115 S.W.2d 962, 134 Tex.Crim. R.; Gribble v. State, 111 S.W.2d 276, 133 Tex.Crim. R.; Hardy v. State, 113 S.W.2d 918, 133 Tex. Cr. 619; Baldridge v. State, 106 S.W.2d 700, 132 Tex.Crim. R.; Humphreys v. State, 99 S.W.2d 600, 131 Tex.Crim. R.; Green v. State, 101 S.W.2d 241, 131 Tex.Crim. R.; Cunningham v. State, 102 S.W.2d 413, 132 Tex.Crim. R.; Stewart v. State, 102 S.W.2d 416, 132 Tex.Crim. R.. The judgment of the trial court is reversed and the cause remanded.
Mr. Branch in his Penal Code, p. 248, Sec. 478, says: "When a complaint is sworn to only on belief it is bad if the allegation is that affiant 'has good reason to believe' and there is no allegation that he 'does believe.' Smith v. State, 45 Tex.Crim. Rep.; 76 S.W. 436; Justice v. State, 45 Tex. Crim. 462; 76 S.W. 437; Tompkins v. State, 77 S.W. 800; Green v. State, 62 Tex.Crim. Rep., 136 S.W. 467." Gribble v. State, 111 S.W.2d 276. It is also to be noted that the jurat on such complaint is defective in that same is not signed officially by the person whose name is attached thereto.
The publication of the order declaring the result of the election constitutes the operative effect of putting local option in force and proof thereof is indispensable. See Branch's P. C., Section 1232, 695-696; Jones v. State, 38 Tex. Crim. 533; Chenowith v. State, 50 Tex.Crim. Rep.; Armstrong v. State, 47 S.W. 981; Humphreys v. State, 99 S.W.2d 600; Green v. State, 101 S.W.2d 241; Gribble v. State, 111 S.W.2d 276; Jackson v. State, 157 S.W. 1196; Walker v. State, 163 S.W. 72. The court charged the jury that Garza County was dry area, to which appellant in due time objected.
There is no evidence in the record in support of the averments in the complaint and information that a local option election had been held in Foard County; that said election had resulted in the prohibition of the sale of intoxicating liquor; and that the result had been duly declared and published by the commissioners' court. Appellant's contention that in the absence of such proof, the evidence is insufficient, must be sustained. Gribble v. State, 111 S.W.2d 276, and authorities cited. The judgment is reversed and the cause remanded.
The averments as to the election, result thereof, and publication, are found in the complaint and information, but no proof supporting such averments is in the record. It is appellant's position that in the absence of proof that Foard County was dry territory the judgment of conviction can not stand. His contention is supported by Humphreys v. State, 131 Tex.Crim. Rep., 99 S.W.2d 600; Green v. State, 131 Tex. Crim. 552, 101 S.W.2d 241; Gribble v. State, 111 S.W.2d 276. The judgment is reversed and the cause remanded.