128 S.W. 1125 | Tex. Crim. App. | 1910
Appellant was convicted of violating the local option law, his punishment being assessed at a fine of $50 and thirty days imprisonment in the county jail.
Motion was made to quash the indictment because it charged appellant "did then and there unlawfully and wilfully sell and give away to one Alvin Blassingame intoxicating liquor, with the purpose of evading the laws of said State." It is contended that under this allegation appellant could be convicted of giving away the intoxicants in violation of said law. The allegation with reference to giving away intoxicating liquors should not have been included in the indictment. It is not a violation of the local option law to give away whisky. This, however, may be treated as surplusage in the indictment and the indictment held good. We are of opinion that the indictment is not fatally defective on account of this allegation. Jordan v. State,
The motion for new trial is based upon two grounds: first, the verdict and judgment are contrary to and against the evidence; second, that the verdict and judgment are contrary to and against the law. We are of opinion that these contentions are correct. There was only one witness testified, and his testimony related exclusively to the transaction between himself as the purchaser and appellant. There is no evidence contained in the statement of facts that local option was in effect in the county. In order to have a violation of the local option law, that law must be operative in the territory where the alleged sale occurred. Because the evidence does not show said law in operation the judgment will be reversed and the cause remanded.
Reversed and remanded.