Koch v. State

88 S.W. 809, 48 Tex. Crim. 396, 1905 Tex. Crim. App. LEXIS 218

Opinion

BROOKS, Judge.

Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $50 and twenty days confinement in the county jail. The indictment alleges the sale to L. S. Ray. His testimony is positive that he bought the whisky from appellant. A clear preponderance of the testimony however, is in favor of appellant. Appellant insists that the court erred in refusing a new trial on the ground of newly discovered evidence. This motion should have been granted. Diligence is shown, and the testimony is material.

Appellant insists that the local option law is not in operation in Bell County, for the reason that the order for the election was made at a special session of the commissioners court, whereas the order recited that it was at a regular session. We have repeatedly held that the order may be made either at a regular or special session of the commissioners court. Loveless v. State, 40 Texas Crim. Rep., 131; 49 S. W. Rep., 602; Abbott v. State, 42 Texas Crim. Rep., 8; 57 S. W. Rep., 97; Hanna v. State, decided at the present term.

The judgment is reversed and the cause remanded.

Reversed and remanded.

[Motion for rehearing overruled without written opinion.—Reporter.]