Youngman v. State

42 S.W. 988, 38 Tex. Crim. 459, 1897 Tex. Crim. App. LEXIS 248

Opinions

HENDERSON, Judge.

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. 0. 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 ease 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.