Opinion
No. 19234.
Delivered December 15, 1937.
Intoxicating Liquor Sale in Dry Area — Complaint and Information.
A complaint and information charging the sale of whisky in a dry area, which did not allege that the commissioners' court canvassed the election returns, declared the result, and published the result as required by law in force at the time of the election, held fatally defective.
Appeal from the County Court of Lynn County. Hon. P. W. Goad, Judge.
Appeal from conviction for sale of whisky in a dry area; penalty, fine of $100 and confinement in jail for 60 days.
Reversed, and prosecution ordered dismissed.
The opinion states the case.
T. L. Price, of Post, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction for a misdemeanor, punishment being assessed at a fine of $100 and confinement in jail for 60 days.
In drawing the complaint and information charging appellant with the sale of whisky in a dry area, the pleader apparently inadvertently omitted two essential averments. It is not alleged that the commissioners' court canvassed the election returns and declared the result. Again, it is not averred that the result had been published as required by the law in force at the time of the election. In Bearden v. State, 102 S.W.2d 204, this court used language as follows:
"The information should have set out all of the facts accompanying and showing that in fact a local option election had been held in Motley County under an order of the commissioners' court, and in accordance with law; showing the result; showing that the votes had been canvassed; that the order had been published, etc., as set out in Whitmire v. State, supra." See Whitmire v. State, 94 S.W.2d 742.
The judgment is reversed and the prosecution ordered dismissed.
Reversed and dismissed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.