Kernell v. State

Court of Criminal Appeals of Texas

Kernell v. State

302 S.W.2d 661, 165 Tex. Crim. 36, 1957 Tex. Crim. App. LEXIS 2238

CourtCourt of Criminal Appeals of Texas

DecidedJune 5, 1957

DocketNo. 29,007

StatusPublished

This text of 302 S.W.2d 661 (Kernell v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Kernell v. State, 302 S.W.2d 661, 165 Tex. Crim. 36, 1957 Tex. Crim. App. LEXIS 2238 (Tex. 1957).

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Opinion

MORRISON, Presiding Judge.

The offense is the unlawful transportation of whiskey in a dry area; the punishment, twenty days in jail and a fine of $300.00.

Our able state’s attorney confesses error, herein, and we agree.

The state introduced in evidence the order calling the prohibition election and the order canvassing the results of such election, and nothing further, even though the appellant called the court’s attention to the fact that the dry status of the county had not been proven.

Langston v. State, 146 Texas Cr. Rep. 35, 171 S.W. 2d 371, is here controlling. Therein, we said:

“The record is silent as to whether there ever had been any publication of the proclamation declaring the results of the election. Under the authorities, there seems to be ho doubt that the evidence is insufficient to show the commission of an offense. See Ellis v. State, 59 Texas Cr. Rep. 626, p. 629, on motion for rehearing, 130 S.W. 170; Craig v. State, Texas Cr. App., 167 S.W. 2d 523. This court has held many times that proof must be made, not only of the election and the result thereof, but it must be followed by a proclamation of the result of the election duly published or posted in the manner and form and for the length of time required by law. Until that is done, the law does not become effective. See Ellis v. State, supra; also Jackson v. State, 70 Texas Cr. Rep. 582, 157 S.W. 1196; Walker v. State, 135 Texas Cr. Rep. 536, 163 S.W. 71, 72; Watson v. State, 135 Texas Cr. Rep. 632, 122 S.W. 2d 311; Baldridge v. State, 132 Texas Cr. Rep. 690, 106 S.W. 2d 700; Gallagher v. State, 142 Texas Cr. Rep. 133, 151 S.W. 2d 819; Craig v. State, supra.”

Upon another trial, appellant’s requested charge on circumstantial evidence should be given.

Because the evidence is insufficient to prove that the area was dry, the judgment is reversed and the cause remanded.

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MORRISON, Presiding Judge.

The offense is the unlawful transportation of whiskey in a dry area; the punishment, twenty days in jail and a fine of $300.00.

Our able state’s attorney confesses error, herein, and we agree.

The state introduced in evidence the order calling the prohibition election and the order canvassing the results of such election, and nothing further, even though the appellant called the court’s attention to the fact that the dry status of the county had not been proven.

Langston v. State, 146 Texas Cr. Rep. 35, 171 S.W. 2d 371, is here controlling. Therein, we said:

“The record is silent as to whether there ever had been any publication of the proclamation declaring the results of the election. Under the authorities, there seems to be ho doubt that the evidence is insufficient to show the commission of an offense. See Ellis v. State, 59 Texas Cr. Rep. 626, p. 629, on motion for rehearing, 130 S.W. 170; Craig v. State, Texas Cr. App., 167 S.W. 2d 523. This court has held many times that proof must be made, not only of the election and the result thereof, but it must be followed by a proclamation of the result of the election duly published or posted in the manner and form and for the length of time required by law. Until that is done, the law does not become effective. See Ellis v. State, supra; also Jackson v. State, 70 Texas Cr. Rep. 582, 157 S.W. 1196; Walker v. State, 135 Texas Cr. Rep. 536, 163 S.W. 71, 72; Watson v. State, 135 Texas Cr. Rep. 632, 122 S.W. 2d 311; Baldridge v. State, 132 Texas Cr. Rep. 690, 106 S.W. 2d 700; Gallagher v. State, 142 Texas Cr. Rep. 133, 151 S.W. 2d 819; Craig v. State, supra.”

Upon another trial, appellant’s requested charge on circumstantial evidence should be given.

Because the evidence is insufficient to prove that the area was dry, the judgment is reversed and the cause remanded.

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302 S.W.2d 661, 165 Tex. Crim. 36, 1957 Tex. Crim. App. LEXIS 2238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kernell-v-state-texcrimapp-1957.

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