No. 3841 | Tex. App. | Apr 22, 1886
Lead Opinion
This is a conviction for violating the local option law.
The petition prays for an election to determine whether or not the sale of intoxicating liquors and medicated bitters producing intoxication shall be prohibited. It is urged by counsel for appellant that, under the Constitution of this State, no election can be had except to determine whether or not the sale of intoxicating liquors should be prohibited.
Evidently to our minds, medicated bitters producing intoxication are intoxicating liquors within the meaning of the Constitution. If we held otherwise, these local option districts would be flooded with intoxicating liquors containing some stuff called medicine.
Over the objection of appellant, the State introduced in evidence a copy of the order of the commissioners’ court determining the result of the election, and prohibiting the sale of liquor in said precinct, etc. It appears from the bill of exceptions that the objections urged were, first, that said order makes the sale of medicated bitters producing intoxication a violation of the law. Second, because the court had no jurisdiction to declare the prohibition of medicated bitters producing intoxication, etc. Third, because said order is not in the words and form as is required by Article 3233, Revised Statutes.
These are the only objections relied upon by the appellant in his bill of exceptions. The first two have been considered above. The third is not well taken, because, if not in the “words” and form, as is required by the statute, it certainly contains all the essential requisites, and is more nearly in compliance with the statute than any we have examined.
Appellant insists that the election was void because the proper officers were not appointed to hold said election at the time the
The judgment in this case was rendered on the twenty-ninth of December, 1885. On the same day a motion for continuance was filed, presented, "and overruled, but to the judgment of the court overruling said motion there was no bill of exceptions reserved; hence, the order of the court upon it will not be revised.
We have found no reversible error in the judgment, and it is affirmed.
Affirmed.
[Appellant moved for a rehearing, and" at a subsequent day of the term his motion was sustained, the affirmance set aside, and the judgment reversed, for the reasons stated in the following opinion.]
Rehearing
On Motion for Rehearing.
It has been repeatedly decided by this court that to authorize a conviction for a violation of the local option law, it must appear that the requisite number of notices of the election were posted, as the law requires, in the district to be affected. (Ex parte Kramer, 19 Ct. App., 123; Smith v. State, Id., 444.)
In this case, from the evidence, it might be inferred that six notices were issued by the clerk, though the evidence of the clerk is to the effect that only five were issued. One of these was posted at the court house door, which was not in the district to be affected by the election. One other notice was handed to a citizen who resided in the district, with instructions to post the same. ' He did not do this himself, but testified in the case that he gave it to his son to be posted. There is nothing beyond this to show that this notice was posted. How, giving to the evidence its utmost effect for the State, it shows that only five were sent out to be posted in the district, one having been put up at the court house. Under the rule announced at a former day the presumption which obtains, that a clerk will do, and has done Iris official duty, can not be extended to a private person, who is
We are of the opinion that the conviction is not warranted by the evidence. The motion for rehearing is granted, and the judgment is reversed and the cause remanded.
■Reversed and remanded.
Opinion delivered May 22, 1886.