Head v. State

• Decision Date: 06 December 1911
• Citation: 141 S.W. 536
• Parties: HEAD v. STATE.
• Court: Texas Court of Criminal Appeals

141 S.W. 536

HEAD v. STATE.

Court of Criminal Appeals of Texas.

December 6, 1911.

Appeal from Dallas County Court at Law; W. F. Whitehurst, Judge.

John Head was convicted of a violation of the local option law, and appeals. Reversed and dismissed.

Pierson, O'Donnell & Pierson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted under a complaint and information charging him with violating the local option law. The complaint and information allege the sale to have been made on the 29th day of September, 1909, but in the complaint and information it is not alleged when prohibition was adopted in the territory described in the complaint and information; the allegation being that said sale had been made "after an election had been held in said territory," etc.

When the case was called for trial, appellant filed the following plea to the jurisdiction: "Comes now the defendant, and shows to the court that the information herein is defective, in that it fails to meet one of the requirements of the Code of Criminal Procedure, in that it does not show that this court has jurisdiction of the offense attempted to be charged in the said indictment, in this, to wit: The court judicially knows that the Thirty-First Legislature in its regular session in 1909 passed a law making the sale of liquor in a local option territory a felony. The court further judicially knows that said law does not apply to counties nor to subdivisions thereof, unless a local option election in said county, or said subdivision was held subsequent to the passage of said law aforesaid. The court does not judicially know when the local option election alleged to have been held in this indictment was held, and does not judicially know that such election was held at all. That the court judicially knows that unless said election, if there was such an election, was held prior to the passage of the aforesaid law by the said Legislature, that this court has no jurisdiction, because there is no allegation in said information as to the time and date of the holding of such election. Wherefore, the defendant prays the affidavit and information herein be quashed and set aside, and that the defendant go hence without day."

The court overruled the plea. Appellant was convicted, and prosecutes an appeal to this court, assigning as error the action of the court in overruling the plea. By article 402 of the Revised Penal Code the Legislature has provided: "If any person shall sell any intoxicating liquor in any county, justice precinct, city or town in which the sale of intoxicating liquor has been prohibited under the laws of this state, or if any person shall give away any intoxicating liquor in any such county, justice precinct, city or town, with the purpose of evading the provisions of said laws, he shall be punished by fine of not less than twenty-five nor more than one hundred dollars, and by imprisonment in the county jail for not less than twenty nor more than sixty days. Or, if any person shall sell any intoxicating liquor in any county, justice precinct, school district, city or town, or subdivision of a county, in which the sale of intoxicating liquors shall hereafter be prohibited under the laws of this state, or if any person shall give away any intoxicating liquor in any such county, justice precinct, school...