Opinion
Opinion May 19, 1948. State's Motion for Rehearing Overruled (Without Written Opinion) May 19, 1948.
1. — Burden of Proof — On State — To Show Dry Area.
To sustain conviction for possessing whisky for purpose of sale in a dry area, State must show the dry status of area.
2. — Burden of Proof — State Must Show What.
It is necessary in prosecution for possessing whisky for purpose of sale in a dry area for the State to show the publication of the order declaring the result of the election and putting local option into effect, in order to sustain conviction.
3. — Evidence — Insufficient — Status Dry Area.
Because the evidence did not show status of dry area, the evidence was insufficient to sustain conviction for the possession of whisky for purpose of sale in a dry area.
Unlawful possession of whisky for the purpose of sale in a dry area. Appeal from County Court of Lamb County; penalty, fine of $500.00.
Hon. O. F. Dent, Judge Presiding.
Reversed and remanded.
Billy Hall, of Littlefield, for appellant.
Robt. L. Kirk, County Attorney, of Littlefield, and Ernest S. Goens, State's Attorney, of Austin, for the State.
This is a conviction for the unlawful possession of whisky for the purpose of sale in Lamb County, a dry area; the punishment, a fine of $500.00.
To sustain the conviction it was incumbent upon the State to show the dry status of Lamb County. This the State failed to do, because there is no testimony showing the publication, as required by law, of the order declaring the result of the election and putting local option into effect. Such proof is necessary to show a dry area. Green v. State, 131 Tex.Crim. R., 101 S.W.2d 241; Murray v. State, 134 Tex.Crim. R., 115 S.W.2d 407; Trapp v. State, 145 Tex.Crim. R., 167 S.W.2d 525; Langston v. State, 146 Tex.Crim. R., 171 S.W.2d 371.
Because the evidence is insufficient to support the conviction, the judgment is reversed and the cause is remanded.
Opinion approved by the Court.