Pitner v. State

• Decision Date: 03 March 1897
• Citation: 39 S.W. 662
• Parties: PITNER v. STATE.
• Court: Texas Court of Criminal Appeals

39 S.W. 662

PITNER v. STATE.

Court of Criminal Appeals of Texas.

March 3, 1897.

Appeal from Shackelford county court; J. A. Matthews, Judge.

Thomas Pitner was convicted of violating the local option law in a county subdivision, and appeals. Affirmed.

A. A. Clarke and J. M. Elliott, for appellant. Mann Trice, for the State.

DAVIDSON, J.

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

1. While the court ought to have quashed the second count in the indictment, yet the failure to do so was not error. The first count was good as charging a sale, and the conviction will be referred to that count. Appellant also excepted to the indictment because it alleged a violation of the local option law in a subdivision; and he insists that no punishment is affixed to the act with reference to subdivisions, and that for the punishment no reference can be had from the act of 1893 to preceding acts for punishment, before any such subdivisions were authorized. This contention has been settled by this court adversely to the appellant. See Ex parte Segars, 32 Tex. Cr. R. 553, 25 S. W. 26, followed in Jordan v. State (No. 1,124 on rehearing; decided at the present term) 39 S. W. 110. However, appellant contends that Segar's Case, supra, has no application, and did not decide the point which he raises. His contention is "that inasmuch as the act of 1887 was the law of the land when the act of March 29, 1893, was passed, and as the former law only provides penalties for violating the local option law in counties, justice precincts, cities, and towns, the legislature, in enacting the latter law, providing for local option elections in subdivisions of counties other than justice precincts, cities, and towns, should have amended the former so as to make the same embrace such new kind of subdivision, and the failure to so amend the Penal Code renders so much of the act of 1893 as provides for such elections in such new kind of subdivisions nugatory." To condense the position of appellant, he contends that nowhere in the Penal Code is a punishment affixed for selling intoxicating liquors in a subdivision of a county, other than the county, justice precinct, city, or town, and that, if the Penal Code had named a subdivision, then there would have been a punishment, but as it affixed the punishment for violating the law in the county, precinct, city, or town, therefore there is no punishment affixed for violating the law in these recent subdivisions. The act of 1893 provides for these subdivisions, and reads: "When any such election has been held and has resulted in favor of prohibition, and the aforesaid court has made the order declaring the result and the order of prohibition, and has caused the same to be published as aforesaid, any person who shall thereafter within the prescribed bounds or prohibition, sell, exchange or give away for the purpose of evading the provisions of this statute, any intoxicating liquors whatsoever, or in any way violates any of the provisions of this statute, shall be subject to prosecution by information or indictment, and shall be punished as prescribed in the Penal Code." Acts 1893, p. 50, amending Sayles' Civ. St. art. 3239. Now, we would not presume from this that you could inflict a punishment for murder, theft, embezzlement, or robbery upon a person for violating the local option law in a subdivision; but we infer that when it says, "shall be punished as prescribed in the Penal Code," that it inevitably and unquestionably refers to the punishment affixed by the Penal Code for violating the local option law,—the same...