Opinion
No. 22582.
Delivered October 20, 1943.
1. — Intoxicating Liquor — Evidence — Dry Area.
In prosecution for selling whisky in a county which was alleged to be a dry area, where the certificate of publication of the result of the prohibition election in said county was not read to the jury by the county clerk as State's witness, and there was no agreement that the county was a dry area or that the certificate should be considered in evidence, the State, being without proof that the order declaring the result of the election had been published as required by law, failed to sustain the averment that the alleged county was a dry area.
2. — Same.
On appeal from conviction of selling whisky in county alleged to be dry area, Court of Criminal Appeals must take the record as it comes to such court and reverse the judgment for want of evidence that the alleged county is a dry area, where the statement of facts does not contain a certificate of the publication of the result of the prohibition election in such county, though such omission arose from a misunderstanding between counsel for State and defendant, and the certificate was shown in evidence heard on motion for new trial.
Appeal from County Court of Fannin County. Hon. O. L. Couch, Judge.
Appeal from conviction for selling whisky in a dry area: penalty, fine of $100.00.
Reversed and remanded.
The opinion states the case.
Cunningham, Lipscomb Cole, of Bonham, for appellant.
Spurgeon E. Bell, State's Attorney, of Austin, for the State.
Conviction is for selling whisky in Fannin County, which was alleged to be a dry area. Punishment was assessed at a fine of one hundred dollars.
Appellant requested the court to direct a verdict of "not guilty," and upon motion for new trial and upon this appeal insists that there was no evidence before the jury showing that Fannin County was a dry area. This contention must be sustained.
The statement of facts was prepared by the trial judge. It is therein shown that the State placed the County Clerk of Fannin County upon the witness stand and had him read to the jury the order of the Commissioners' Court of date May 15, 1903, directing the holding of an election in Fannin County to determine whether the sale of intoxicating liquor should be prohibited. He also had the Clerk read the order of the Commissioners' Court which declared the result of said election to have been in favor of prohibition. It then appears that the certificate of publication of the result was not read to the jury, but that the State's attorney asked appellant's attorney if he wanted the certificate read, and appellant's attorney replied that "so far as he was concerned he did not require the certificate to be read."
There was no agreement that Fannin County was dry area, and no agreement that the certificate should be considered in evidence. Without proof that the order declaring the result of the election had been published as required by law the State had failed to sustain the averment that Fannin County was dry area. Watson v. State, 135 Tex.Crim. R., 122 S.W.2d 311; Davis v. State, 167 S.W.2d 523; Craig v. State, 167 S.W.2d 523; Cremona v. State, 172 S.W.2d 102.
The omission of the certificate of publication evidently arose from some misunderstanding between counsel for the State and counsel for appellant. This is unfortunate, but we must take the record as it comes to us. As it thus appears the certificate in question is shown in the evidence heard upon the motion for new trial, but is absent from the statement of facts upon the trial before the jury.
The judgment is reversed and the cause remanded.