Brooks v. State

• Decision Date: 06 March 1940
• Docket Number: No. 20823.,20823.
• Citation: 137 S.W.2d 768
• Parties: BROOKS v. STATE
• Court: Texas Court of Criminal Appeals

137 S.W.2d 768

BROOKS v. STATE

No. 20823.

Court of Criminal Appeals of Texas.

March 6, 1940.

Appeal from Anderson County Court; W. O. Funderburk, Judge.

Roy Brooks was convicted for possessing for purpose of sale in dry area an alcoholic beverage containing alcohol in excess of one per cent. by volume, and not more than four per cent. by weight, and he appeals.

Reversed and cause remanded.

Greenwood & Reeves, of Palestine, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

Conviction is for possessing for the purpose of sale in dry area an alcoholic beverage containing alcohol in excess of 1/2 of one percent by volume, and not more than 4% by weight, punishment assessed being a fine of $150.

The State, through our State's Attorney, suggests that perhaps the State's pleading is defective in omitting to allege the publication of the result of the prohibition election in Anderson County upon which reliance is had to support the claim that said county is dry territory. Appellant did not seek to quash the complaint and information because of said omission but insists that the State's case falls by reason of a failure to prove publication of the result of said election.

In view of the averments in the complaint and information we are of opinion that both the State and appellant are not supported in their positions.

Of course, it has been held many times that local option does not become effective until the order declaring the result of the election therefor has been published as required by the statute. See Branch's Ann. Tex.P.C. sec. 1232, p. 696; Watson v. State, 135 Tex.Cr.R. 632, 122 S.W.2d 311 and cases therein cited; Sweeten v. State, 135 Tex.Cr.R. 445, 120 S.W.2d 1074 and cases therein cited. It has been held even in cases where the publication of the result of an election as declared by the Commissioners' Court has been enjoined by court proceedings that the publication must still be made when the injunction is dissolved. Griffin v. State, Tex.Cr.App., 87 S.W. 155; Ex parte Brown, 35 Tex.Cr.R. 443, 34 S. W. 131. It will be observed that in the character of cases last mentioned as well as the others referred to the State relies on the orders and publications of the Commissioners' Court, which are controlled by the statute, and therein lies the difference between those cases and the one now before us.

It is alleged in the State's pleading that Anderson County was "dry area" by reason of a valid prohibition election held in said county in July, 1913; that upon a canvass of the returns of said election the Commissioners' Court declared the result to be against prohibition; that upon a contest of said election duly tried in the District Court it was adjudged that said election had resulted in favor of prohibition. The judgment of the District Court is set out in the State's pleading, and shows that the State is relying on that judgment, and not upon the declaration of the result by the Commissioners' Court. It is true the judgment recites that the clerk of the District Court is directed to select a paper and make publication of the judgment for four successive weeks. There is no proof that such publication was made. We regard that as immaterial. The notice would have apprised those interested in the matter, but there was no statute requiring notice of the judgment of the District Court to be published, and notice was not a prerequisite in making effective the judgment of said court. The judgment itself was notice to the world, as it was very properly held to be in Bickers v. Lacy, Tex.Civ.App., 134 S.W. 763, 765. We copy from the opinion in said case the following:

"The case of Chenowith v. State, 50 Tex. Cr.R. 238, 96 S.W. 19, and others cited by appellant, holding that a local option prohibition law does not go into effect until the county judge has caused publication of the result of the election as prescribed by the article before cited, are cases in which the commissioners' court had declared the result of the election to be in favor of prohibition, and not cases in which that result was declared by a judgment of a district court in a contest proceeding brought for that purpose. An election contest is a proceeding in rem, and a judgment in such proceeding is binding and conclusive upon all the world. Evans v. State, 55 Tex.Cr. R. 450, 117 S.W. 167.

"Such being the character of the contest proceeding, all persons are charged with notice of the judgment therein rendered, and therefore no publication of said judgment is deemed necessary, and none is required by the statute. It may be that ...