Loveless v. State

• Decision Date: 15 February 1899
• Parties: LOVELESS v. STATE.
• Court: Texas Court of Criminal Appeals

49 S.W. 601

LOVELESS v. STATE.

Court of Criminal Appeals of Texas.

February 15, 1899.

Appeal from Kaufman county court; John Vesey, Judge.

M. L. Loveless was convicted of violating the local option law, and she appeals. Affirmed.

Robt. A. John, for the State.

HENDERSON, J.

Appellant was convicted of violating the local option law, and her punishment assessed at a fine of $75, and 20 days' confinement in the county jail, and she appeals.

Appellant made a motion to quash the indictment in this case, which was overruled by the court; and she excepts, among other things, because said indictment failed to charge that the commissioners' court of Kaufman county had previously ordered an election to determine whether or not the sale of intoxicating liquors should be prohibited in justice precinct No. 2 of Kaufman county. We have examined the indictment carefully, and it is in accord with the form laid down in Willson, Cr. Forms, § 257, and Key v. State, 37 Tex. Cr. R. 77, 38 S. W. 773.

Appellant, as stated above, laid special stress on the idea that the indictment fails to charge that liquor was sold after prohibition had been legally adopted in said justice precinct No. 2. We think this contention is unsound. The indictment distinctly alleges the date of the sale, and that said date was after the election had been held by the qualified voters of said Justice precinct, etc., and such election had resulted in favor of prohibition, etc., and said commissioners' court had passed and entered its order declaring the result of such election, and same had been published, etc. This is certainly an allegation that all these steps had been taken, and that local option had been adopted in said justice precinct, and that the sale was after all these steps had been taken. We think, however, a better form of indictment is laid down in Key v. State, supra; and see, also, White, Ann. Pen. Code, § 681.

Appellant objected to the order which was introduced by the state, made by the commissioners' court, ordering an election for said justice precinct No. 2, on the following grounds: "Because the order for the election did not express the object of said election, and did not appear to be at a regular term of the court, and did order an election entirely prohibiting the sale of intoxicating liquors." We have examined the order carefully, and in our opinion it very clearly expresses the object of the election. It first recites the object of the election, and then states that the order for election was for said purposes, etc. The objection that the order did not appear to have been made at a regular term of the court is equally groundless. We take judicial cognizance that a term of the commissioners' court is held in each county in the state on the second Monday in February. The order in this case was made on the 14th day of February, which sufficiently states that it was at the February term. Besides, we are inclined to the view that the commissioners' court could make this order at a special session. See Rev. Civ. St. 1895, art. 3384. That part of the order which entirely prohibits the sale of intoxicating liquors in said justice precinct is not illegal. It is not necessary that the order for the election embrace the exceptions, and because the exceptions for medicinal and sacramental purposes are not contained in the order for the election, or in the order declaring the result, and the order absolutely prohibits the sale of intoxicating liquors in the local option precinct, does not inhibit sales for such purposes. It has reference to such sales as can be prohibited under the local option law, and no more. Williams v. State (Tex. Cr. App.) 39 S. W. 664.

Appellant also objected to the order declaring the result of the election, because she urges that...