38 S.W. 774 | Tex. Crim. App. | 1897
Appellant was convicted of violating the local option law, and fined $25 and given twenty days in the county jail; hence this appeal. The information charges local option to be in effect in "justice precinct number six in Hunt County." The information, we think, is in proper form. See, Key v. State, post p. 77. It is insisted by counsel for appellant that, as there was situated in said justice precinct an incorporated town, therefore the information is fatally defective, because it does not allege that the petition for the election was signed by at least one-tenth of the qualified voters who voted at that town, etc. This is altogether unnecessary, and *76 made so by the statute. Art. 3386, Rev. Stats., provides, "After the order for the election has been made, that this fact shall be prima facie evidence that all provisions necessary to give it validity or to clothe the court with jurisdiction to make it, have been fully complied with." We presume, because the statute presumes, that the petition was properly signed. It devolves upon the appellant to show that it was not. If in fact an incorporated city or town was within a precinct, and this fact was shown upon the trial, and the defendant should show there was no petition, the election would be void. If the State should introduce in evidence a petition for an election in said precinct, signed by a sufficient number of person, the defendant then must attack the petition by showing that the requisite number of voters of that city had not signed the petition. This provision applies alone to a justice precinct, or subdivision of such county, embracing within its limits an incorporated town or city, or portion thereof. This is a remarkable provision. The Commissioner's Court is authorized to order an election in the county, with or without petition, or any town or city therein; but when the election is to be held in a justice precinct, or subdivision of such county, and there is an incorporated city or town situated therein, there must be a petition signed by a certain portion of the qualified voters. By considering "subdivision" to mean a town or city, the same things would be required. These remarks made by the way. We do not decide, where the election is for an incorporated city or town alone, that a petition is necessary. Counsel for appellant insists that the testimony fails to support the verdict of the jury. The information charges that the beer was sold to H.C. Burns. Burns testified in substance, that he was walking down the sidewalk in Commerce, in said precinct, when the defendant hailed him, in front of Crawford's saloon (defendant being a bartender in said saloon), stating to him that he had some beer at the house. He went into the house, and, as he says, bought a bottle of beer from the appellant; that appellant opened the bottle, and witness drank it. As Crawford, the proprietor, was in debt to the witness, Burns, he says that he told the appellant to charge the beer to him, but he is not certain whether appellant heard him. Appellant was on the stand, and testified, stating that he gave Burns the beer. He does not state that he informed Burns at the time that it was a gift, nor does he deny that Burns told him to charge the beer to him. This matter was submitted to the jury by proper instructions, and they found a sale of the beer. We do not think we would be authorized in setting their verdict aside. The judgment is affirmed.
Affirmed. *77