Holloway v. State

110 S.W. 745, 53 Tex. Crim. 246, 1908 Tex. Crim. App. LEXIS 546

• Court: Court of Criminal Appeals of Texas
• Decided: March 18, 1908
• Docket: No. 4080.
• Status: Published

Opinions

RAMSEY, Judge.

Appellant was charged in the County Court of Jones County with unlawfully selling intoxicating liquors in violation of the local option law.

It is claimed that the indictment is insufficient. The charging part of same is as follows: “Did then and there unlawfully sell to Walter Brewington intoxicating liquor after the qualified voters of said Jones County had determined at an election held in accordance with the laws of said State that the sale of intoxicating liquor should be prohibited in said Jones County, and commissioners court of said county had passed an order to that effect which order had been duly published in accordance with law, against the peace and dignity of the State.” It is claimed that this indictment is invalid in that it does not allege in terms that the commissioners court had declared the result of said election. That it is essential the commissioners court shall declare the result of a prohibition election before such election could become effective can admit of no doubt. This precise question has been ruled adversely to appellant in the case of Shilling v. State, 51 S. W. Rep., 240. That the similarity of the two indictments may be seen, they are here inserted in parallel columns.

“That Jim Shilling, on or about the 30th day of January, 1897, and anterior to the presentment of this indictment, in justice precinct No. 5 in the County of Coleman and State of Texas, did then and there unlawfully sell to Ed Henderson intoxicating liquor, after the qualified voters of said justice precinct had determined, at an election held in accordance with the laws of said State, that the sale of intoxicating liquor should be prohibited in said justice precinct, and the commissioners court of said county had passed an order to that effect, which order had been duly published in accordance with law, against the peace and dignity of the State.”

“That B. F. Holloway, on or about the 11th day of August, One Thousand Nine Hundred and Six, and anterior to the presentment of this indictment, in the County .of Jones, and State of Texas, did then and there unlawfully sell to Walter Brewington intoxicating liquor after the qualified voters of said Jones County had determined at an election, held in accordance with the laws of said State, that the sale of intoxicating liquor should be prohibited in said Jones County, and commissioners court of said county had passed an order to that effect, which order had been duly published in accordance with law, against the peace and dignity of the State.”

Passing on the indictment ip the Shilling case, after quoting same, Judge Brooks says: “We hold this indictment is good,” and refers to the cases of Key v. State, 37 Texas Crim. Rep., 77, and Willis v. State, 37 Texas Crim. Rep., 82. It will be observed by reference to these cases that the precise point was not decided either in the Key case nor in the Willis case, but in the Key case particularly, it was held that a general allegation of publication was sufficient without in terms declaring that the paper had been selected by the county judge. The identical question here involved arose in the case of Stephens v. State, 97 S. W. Rep., 483, where, practically, the validity of the same indictment was upheld by the entire court. The indictment in that case was as follows: “Said Charley Stephens did then and there unlawfully sell intoxicating liquors to J. A. Hill after the qualified voters of said Johnson County had determined at an election held in accordance with the laws of the State of Texas that the sale of intoxicating liquors should be prohibited in said county, and after the commissioners court of said county had made an order prohibiting the sale of intoxicating liquors in said county, and after said order had been published according to law.” In that case as in this, there was no direct averment of the fact that the commissioners court had declared the result, but the court say, speaking through Judge Henderson, “Enough is here alleged to show that they had declared the result.” Evidently the decision in the Shilling case, as" in the Stephens case, proceeded upon the proposition and theory that inasmuch as the declaration o.f the result was a condition precedent to the order prohibiting the sale of intoxicating liquors in such county, that the allegation in the indictment that such order was entered prohibiting such sale, of necessity embraced and included the fact that the.condition precedent had been complied with, to wit: the result of the election had been declared. As an original proposition, the writer might have had some doubt as to the sufficiency of this indictment, but in view of the fact that the form of indictment here attacked was held to be good in the Shilling case, decided May 10, 1899, and reaffirmed in the Stephens case, decided October 24, 1906, and since, no doubt, the officers of the State have in good faith relied upon the holding of this court sustaining such indictments, it being a matter of pleading and practice only, and not a question of substantial right, there would seem to be strong reasons why we should not unsettle the law, and adopt a holding, the effect of which might be to conclude the State in many prosecutions under the local option statute. So believing, we reaffirm the doctrine laid down in the Shilling case and in the Stephens case, and hold the indictment in question good.

The judgment of the court below is affirmed.

Affirmed.