Massie v. State

• Decision Date: 12 February 1908
• Citation: 107 S.W. 846
• Parties: MASSIE v. STATE.
• Court: Texas Court of Criminal Appeals

107 S.W. 846

MASSIE v. STATE.

Court of Criminal Appeals of Texas.

February 12, 1908.

Appeal from Eastland County Court; E. A. Hill, Judge.

Dick Massie was convicted of violating the local option law, and appeals. Affirmed.

J. J. Butts, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was convicted in the county court of Eastland county on a charge of unlawfully selling intoxicating liquors in violation of the local option law.

While there are several questions raised by the record, there are only two matters that need require attention, both of which have been well briefed by both counsel for the appellant and for the state. In the first place, it is contended that the court erred in overruling defendant's motion to quash the indictment upon which this prosecution is based, and the transcript accompanying said indictment, and transferring said cause from the district court to the county court. The proposition submitted under this contention is as follows, and clearly raises the question relied on: "In prosecution by indictment, the county court can only acquire jurisdiction by a proper transfer of the cause from the district court to the county court; and where the certified copy of the order of the district court, transferring the cause to the county court and accompanying the indictment, affirmatively shows that the defendant stands charged with no act for which a prosecution will lie, the indictment should, on motion to that effect being lodged in due time, be quashed." We cannot agree that, as here presented, and in the light of the record before us, there is any merit in this contention. We believe that the order of transfer from the district court is sufficient. The certificate recites the due organization of the district court of Eastland county, the proper impanelment of the grand jury, and that the following proceedings were had in the cause of State of Texas v. Dick Massie, No. 2,228: That is, on the 26th day of January, 1907, the grand jury came in open court in a body and presented the following indictment: "The State of Texas v. Dick Massie. File No. 2,228." In the margin of the order of transfer there is a statement as follows: "Offense, violation of the local option law. No. 2,228." And then follows this language: "Whereas, this 26th day of January, 1907, it appearing to the court from an inspection of the indictment that this court has not jurisdiction of this case, the same being a misdemeanor, and that the county court of Eastland county, Texas, has jurisdiction of the same, it is ordered that the said case be and the same is transferred to said county court of said county." The law does not require that the nature and name of the offense charged against a defendant be set out in the order of transfer. See Tellison v. State, 35 Tex. Cr. R. 388, 33 S. W. 1082, and Malloy v. State, 35 Tex. Cr. R. 389, 33 S. W. 1082. We hold that the conclusion and statement of the terms and nature of the offense, whether accurate or erroneous, is surplusage.

The other question, well raised and well presented, is to the effect, in substance, that where the record shows that there had been successive elections held in the same county for the purpose of determining whether intoxicating liquors shall be sold therein, and both elections resulted in favor of prohibiting the sale of...