Dane v. State

• Decision Date: 06 May 1896
• Citation: 35 S.W. 661
• Parties: DANE v. STATE.
• Court: Texas Court of Criminal Appeals

35 S.W. 661

DANE v. STATE.

Court of Criminal Appeals of Texas.

May 6, 1896.

Appeal from Falls county court; William Shelton, Judge.

W. S. Dane, alias W. S. Humphries, was convicted of violating the local option law, and appeals. Reversed.

Rice & Bartlett, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $25 and 20 days' imprisonment in the county jail, and prosecutes this appeal.

1. Appellant filed a motion to quash the information in this case on the ground that W. L. Watkins, before whom the affidavit to the complaint was made, was not a deputy county attorney, in this: that his pretended appointment is not of record in Falls county, as required by law, and said appointment was not made with the consent of the commissioners' court of Falls county, and no session of the commissioners' court of said county has been held since the appointment of said deputy. On this motion evidence was adduced. It was shown that W. L. Watkins was appointed deputy county attorney by George C. Cabell, the county attorney of Falls county; and his appointment was introduced in evidence, upon which there was indorsed the oath of office prescribed by the constitution, taken before W. L. Falconer, county clerk of Falls county, and the same had been filed with the county clerk of Falls county. It was further shown that said appointment was made without the consent of the commissioners' court of Falls county, said commissioners' court never having convened since his appointment had been made. This was the condition of his appointment at the time the oath to the complaint was made before him. The statute on this subject provides: "County attorneys shall have power by consent of the commissioners' court to appoint in writing, one or more assistants, not to exceed three, for their respective counties, to continue in office during the pleasure of their principals, and who shall have the power and authority to perform all the acts and duties of their principals, * * * and every person so appointed shall, before he enters upon the duties of his office, take and subscribe the oath of office prescribed by the constitution, which shall be indorsed upon his appointment, together with the certificate of the officer administering the same, and such appointments and oaths shall be recorded in the office of the county clerk, and deposited in said office." Rev. Civ. St. 1895, art. 281. It appears that in this case all of the steps had been taken, except the consent of the commissioners' court, and the record of his appointment had not been recorded in the clerk's office, his appointment being simply deposited there. We apprehend that the reason for the failure to record said appointment was because the commissioners' court had not made a formal consent to said appointment. In our opinion, although the commissioners' court had not at the time consented to the appointment of the said deputy county attorney, he was a de facto officer, and, as such, entitled to administer the oath to the complainant in this case, and his authority could not be attacked in a collateral proceeding. See 5 Am. & Eng. Enc. Law, p. 107, note 1, for collation of authorities.

2. In our opinion, the court properly admitted the orders of the court and the proceedings relating to the local option election in Chilton precinct, and the objections taken thereto were not tenable.

3. Appellant objected to the introduction of evidence by the state showing that he had sold to other persons than the party named in the information the same compound, to wit, lemon, ginger, and pepsin, and that he had sold it to them on other occasions by the drink. The fact that it was made an issue in this case as to whether the compound in question was an intoxicant rendered the testimony complained of admissible, as the witnesses testified that it was of a similar character, and known by the same name, and that they bought it by the...