31 S.W. 370 | Tex. Crim. App. | 1895
Appellant was tried under an information charging him with keeping a "blind tiger," was convicted by the jury and his punishment assessed at two months in the county jail, and a fine of $100, and from the judgment of the lower court he prosecutes his appeal. The information in this case charges that the defendant, in a certain local option precinct (describing it), "did then and there unlawfully and wilfully keep and run, and was then and there interested in keeping and running, a 'blind tiger' for the purpose of selling intoxicating liquors; that he did then and there sell to John Baugh intoxicating liquors," etc. The appellant moved to quash this indictment because it did not charge any offense, and because it was duplicitous. We think the allegation that he kept a "blind tiger," without further description, is sufficient; and further, that the allegation that he sold intoxicating liquors to John Baugh does not make the information duplicitous. The appellant assigns as error that certain persons called as jurors were shown to have formed opinions; some of them in similar cases against appellant, and one of them as to the case then on trial. The bill of exceptions does not show that said jurors sat in the case or that appellant's challenges were exhausted; and, moreover, it does not show that any of those called as jurors had formed such opinion as to the guilt or innocence of the defendant in the particular case then on trial such as would disqualify them. Nor did the court err in requiring counsel for defendant to return to the witness, Payne, the internal revenue license and the State license for selling intoxicating liquor, which had been brought into court as testimony. The statute itself makes the internal revenue license prima facie proof that the person to whom such license is issued is keeping and running such "blind tiger," and the fact that the counsel had gotten possession of the license gave it no immunity from process of the court. The appellant also insists that the court erred *48 in permitting witnesses to testify that they saw notices of the election posted up in the city of Brownwood. The fact that the clerk had posted these notices through one Adams, who was shown to be absent, did not deprive the State of other means of proof that the notices were in fact posted up. We think the proof in this case, even if the onus had been on the State, sufficient to have shown that the notices of the election were posted up for the required length of time; but we have heretofore held (Irish v. State, 34 Tex.Crim. Rep.) that "it will be presumed that the County Court, when it entered the order declaring the result of the election and prohibiting the sale of intoxicating liquors within the county, passed upon all preliminary matters appertaining to the legality of the election, and that the party attacking the legality of the election must prove that the proper notices were not posted." And under the doctrine of that case it was incumbent on the appellant in this case to have proven that such notices were not posted up for the required length of time before he could avail himself of the invalidity of said election, otherwise its legality will be presumed. Id. As explained by the court in the bill of exceptions, we see no error in permitting the county attorney to read before the jury excerpts from the opinion of this court in a former case against the same party.] There being no errors in the record the judgment is affirmed.
Affirmed.