42 S.W. 988 | Tex. Crim. App. | 1897
Lead Opinion
Appellant was convicted of selling intoxicating liquors in a local option territory, in Van Zandt County, in violation of law. The indictment charges the offense in appropriate language. That portion of the recognizance which undertakes to recite the offense is in the following language: "Conditioned that the said W.T. Youngman, who stands charged in this court with the offense of violating the local option law, by selling to M.O. Bates one quart of intoxicating liquor, in a subdivision of Van Zandt County, to wit, justice precincts numbers 1, 3, and 7, where the sale of intoxicating liquor had been prohibited, and was then in force, and who had been convicted of said offense," etc.
Violating the local option law is not an offense eo nomine; hence the essential elements thereof must be recited in the recognizance — that is, such was the law at the time this obligation was entered into. In Key v. State, 37 Texas Criminal Reports, 77, we stated the essential elements which constitute the offense of violating the local option law, and the recognizance should follow the allegations in said indictment; that is, should contain the essential elements of said offense as stated in the indictment. The recognizance in this case does not do so, but fails to state the essential elements of the offense. It is therefore defective, and the appeal is dismissed.
Dismissed.
HURT, Presiding Judge, absent.
Addendum
On a former day of this term the appeal herein was dismissed because the recognizance was defective. It is here contended that the original recognizance is a good recognizance, reciting the offense substantially. We held that the recognizance was defective because it did not contain the essential elements of the offense. The recognizance fails to recite that the sale was made after the qualified voters of said county had, at a legal election, held for that purpose in accordance with the law, determined that the sale of intoxicating liquor should be prohibited in said precincts numbers 1, 3, and 7 and that the Commissioners Court of said county had declared the result, and legally *462
passed an order to that effect, which order had been published as required by law. These were the essential allegations of the offense, as prescribed by statute and as has been held by this court. See Key v. State, 37 Tex.Crim. Rep.; Gaines v. State, 37 Tex.Crim. Rep.. An examination of the language of the recognizance will show that these essential elements of the offense were not embodied in the recognizance. Appellant seeks now to retain the jurisdiction of this court by virtue of another recognizance, which he appears to have entered into in the court below at a succeeding term, and since the record was filed in the court, and refers us to Collins v. State, 34 Texas Criminal Reports, 95. The expressions used in that opinion, in the absence of the statement of facts, might indicate that, in our opinion, where a case had been dismissed on account of a defective recognizance, a new recognizance, complying with the law, could be taken, and in that manner the jurisdiction of the court maintained; but an examination of the statement of facts, in connection with the opinion, will show that it was not a new recognizance, but that a certiorari brought up the original recognizance, which appeared to be in sufficient legal form, the first recognizance sent up being defective on account of a clerical error in copying. We have held that, where the recognizance was defective, another proper legal recognizance could not be entered into in the court below pending the appeal, and so perfect the appeal. See Lewis v. State,
We accordingly hold that it was not competent for appellant to enter into a new recognizance in the court below, and the motion for rehearing is overruled.
Motion overruled.
