No. 2904. | Tex. Crim. App. | Mar 9, 1904
Appellant was convicted of violating the local option law, and his punishment assessed at confinement in the county jail for twenty days and a fine of $40; hence this appeal.
Appellant objected to the introduction of the order of the commissioners court ordering the election for Wilbarger County, on the ground, as he contends, that the order, in connection with the petition, rendered it doubtful what day was appointed for holding the election: the petition asking that the election be held on the 17th day of December, 1902, and the court in its order approves the petition; but then proceeds to order the election for the 6th of December, 1902. The contention is *165 that by approving the petition in all things, the commissioners court approved the date for holding the election as set out in the petition. If there was nothing else in the order of the commissioners court, then December 17th would evidently be the day selected; but here the court distinctly orders the election to be held on December 6th; and the mere fact that the petition for the election had been approved in all things, can not be held to render uncertain the day when the election was ordered. The court was not bound by the requested day, and the approval of the petition will not be held to approve the date suggested herein, when the court, as they had a right to do, fixed another day.
The order of the commissioners court is also objected to on the ground that it does not say in terms that the election was to be held by the qualified voters of Wilbarger County. The law requires that the qualified voters of the county only can vote at such election; and the submission of the issue would embrace only qualified voters. If others than those voted, and appellant had shown it, then there might be some cause of complaint on the ground that persons not qualified to vote cast their votes at said election.
It was also objected to the order that it submitted to the people to vote on "whether or not" local option should be adopted in Wilbarger County, whereas the language of the law, is that it should be submitted as to "whether" they should adopt local option. It occurs to us that this criticism is hypercritical. Indeed, "whether or not" emphasizes and makes clearer the issue in our opinion. Certainly it is no variance from the law that requires the submission to the voters as to "whether" they shall adopt local option.
Appellant also objected to the order declaring the result on the ground that the same required the publication of the order for four successive weeks in some newspaper published in Wilbarger County, to be selected by the county judge, and suspended the operation of the law until such publication had been made and certified to as the law directs. This we understand to be in response to the requirements of the law. There was no uncertain contingency as to when the law should go into operation, as that is made certain by the publication for four successive weeks. Whenever this event occurred, it is provided that the law go into operation. Nor did the publication for five weeks violate the law; it went into operation at the expiration of the publication for the four successive weeks, regardless of any further publication. The certificate of publication and the proceedings of the court on its return appear to be regular, and not subject to the objections of appellant.
Appellant insists that the conviction is not supported by the evidence in the case. We have examined the record carefully, and in our opinion the testimony is sufficient to support the verdict of the jury. The judgment is affirmed.
Affirmed. *166