20 S.W. 1106 | Tex. Crim. App. | 1893
Appellant was indicted for a violation of the local option law in Justice Precinct No. 6 of Ellis County, convicted and fined in the sum of $25 and costs of court, from which judgment he appeals.
1. Appellant contends that the petition, though signed by fifty voters, did not pray for a local option election, and can not be a basis for the action of the County Commissioners Court. The petition states that there now exists in said precinct what purports to be local option, by reason of certain orders made by this court more than four years ago; that they are desirous of another election in Precinct No. 6, to determine whether said orders should be set aside by the court under the law, and therefore ask the court to order an election in said Precinct No. 6, to be held by the qualified voters, in all things in conformity with law. It was evidently the object and purpose of the petitioners to have an election to enable them to vote out the local option then existing, and it was so understood by the County Commissioners Court. In Ex Parte Lynn, 19 Texas Court of Appeals 297[
2. The appellant attacks both the order of the County Commissioners Court which ordered the election and the order declaring the result of the election, upon the ground that the election was ordered to determine whether or not the sale of intoxicating liquors and medicated bitters producing intoxication should be prohibited, etc.; and in announcing the *472
result the court ordered that the sale of intoxicating liquors and medicated bitters producing intoxication should be prohibited, etc. It is contended that this presented a false issue to the voters, and probably induced many to vote for local option who would not otherwise have done so, as suggested in the Steele case, 19 Texas Court of Appeals 429[
But article 3231 declares, that "at said election those who favor the prohibition of the sale of intoxicating liquors within the proposed limits shall have written or printed on their ticket the words, 'For prohibition,' " etc. Again, in article 3233, after the counting of the votes, "said court shall immediately make an order declaring the result of said vote, and absolutely prohibiting the sale of intoxicating liquors within the prescribed limits," etc.
Article 3234 declares, that the order of the court declaring the result of the election and prohibiting the sale of intoxicating liquors shall be published.
Article 3239 declares, that when an election is held, and results in favor of prohibition, and notice is given, any person who shall sell, exchange, or give away any intoxicating liquors whatever shall be punished, etc.
It thus appears, that while there was a distinction apparently drawn between "intoxicating liquors" and "medicated bitters producing intoxication" in the first section of the act, they are considered as one in casting the votes by the people, in the entry of the order declaring the result, in the publication, and in the definition of the crime. It would certainly seem that "medicated bitters producing intoxication," though named in the statute, was regarded by the Legislature as being an intoxicating liquor; and when under the Act of 1887 the Legislature struck out the words "medicated bitters producing intoxication" from the first section, they were led to do so because that character of bitters, to-wit, producing intoxication, was intoxicating liquor and included in the general term, and therefore useless in the statute.
In the James case, 21 Texas Court of Appeals 355[
3. We think there was sufficient evidence to support the verdict. There is but little question that the sale was made, and the money received in payment of the whisky, in violation of law. The judgment is affirmed.
Affirmed.
Judges all present and concurring.