Green v. State

• Decision Date: 13 May 1908
• Parties: GREEN v. STATE.
• Court: Texas Court of Criminal Appeals

110 S.W. 919

GREEN v. STATE.

Court of Criminal Appeals of Texas.

May 13, 1908.

Appeal from Brown County Court; A. M. Brumfield, Judge.

Jerry Green was convicted of violating the local option law, and he appeals. Reversed and remanded.

Harrison & Wayman, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction was for violating the local option law. The affidavit and information charges that an election was held on the 15th day of September, 1903. The alleged sale of the whisky occurred on the 26th day of October, 1906. The orders and declaration of result and publication of the order introduced in evidence occurred in September and October, 1906. The publication in the newspaper began on the 4th of October; the last publication being on the 25th of October. The sale occurred on the 26th of October.

It is contended the evidence does not support the allegations in the information. This contention is sound. There was no evidence introduced to show that there was an election held in 1903. The information having alleged the sale by virtue of the election in 1903, it would be necessary to prove it. There being no evidence introduced to show that such election was held, from that stand-point of the record a conviction cannot be sustained. The orders, decrees, declarations, and publication of the result of the election of 1906 cannot sustain the conviction, for the reason that the sale occurred on the 26th of October, which is less than 28 days after the beginning of the publication. The four publications occurred on the 4th, 11th, 18th, and 25th of October, and covered but 21 days prior to the 26th. At any rate, it did not cover the requisite number of 28 days. The sale having occurred before the 4 weeks' publication was terminated, there could be no violation of law. Under either law this conviction cannot be sustained; for under that of 1903 there is no evidence showing an election, and under that of 1906 the publication had not been consummated.

There is filed with the case an agreed statement of facts showing that the orders in regard to the election of 1903 were introduced, and exception reserved to the introduction of such orders; but this was not filed in the trial court within the time authorized. The court adjourned on the 11th day of May, 1907. This agreed statement of facts in regard to the election of 1903 was not filed until the 29th of August, 1907, and therefore cannot be considered.

The judgment...