Opinion
No. 18422.
Delivered October 21, 1936.
1. — Intoxicating Liquor — Complaint and Information — Local Option Law.
Complaint and information containing the averment that defendant unlawfully possessed for purpose of sale certain whisky in named county, then and there being a dry area, as defined by law, held insufficient to allege a violation of Local Option Law.
2. — Intoxicating Liquor — Indictment or Information — Local Option Law.
Indictment or information for violation of Local Option Law must show that an election was held and that as a result thereof the act complained of was prohibited. (Following Whitmire v. State, 94 S.W.2d 742, 130 Texas Crim. Rep., page 372).
Appeal from the County Court of Hunt County. Tried below before the Hon. T. D. Starnes, Judge.
Appeal from conviction for violation of the Local Option Law; penalty, fine of $100.00.
Reversed and prosecution ordered dismissed.
The opinion states the case.
C. C. McKinney, of Cooper, and S.W. Pratt, of Commerce, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The conviction is for violation of the so-called "Local Option Law"; penalty assessed at a fine of $100.00.
The complaint and information contain the averment that the appellant "did then and there unlawfully possess for the purpose of sale certain whisky, in said Hunt County, Texas, then and there being a dry area as defined by law." The averment mentioned is insufficient to allege a violation of the law. See opinion of Judge Hawkins in the case of Whitmire v. State, 94 S.W.2d 742, to the effect that the indictment or information must show that an election was held and that as a result thereof the act complained of was prohibited. See, also, Schmidt v. State, 94 S.W.2d 743.
Under the present complaint and information, the judgment must be reversed and the prosecution ordered dismissed. It is so ordered.
Reversed and prosecution ordered dismissed.