White v. State

• Decision Date: 05 February 1919
• Docket Number: (No. 5268.)
• Citation: 210 S.W. 200
• Parties: WHITE v. STATE.
• Court: Texas Court of Criminal Appeals

210 S.W. 200

WHITE v. STATE.

(No. 5268.)

Court of Criminal Appeals of Texas.

February 5, 1919.

Rehearing Denied March 12, 1919.

Appeal from District Court, Montague County; John Speer, Judge.

Ernest White was convicted of selling intoxicating liquor in local option territory, and he appeals. Affirmed.

Ernest White, in pro. per.

E. A. Berry, Asst. Atty. Gen., for the State.

MORROW, J.

The conviction is for the sale of intoxicating liquors in a district in which the sale of such liquor is prohibited under the local option law.

The court adjourned on the 20th day of July, 1918. Appellant has several bills of exception which were filed on the 19th day of October. There were two orders extending the time within which to file bills of exception and statement of facts, one granting 30 days after adjournment, and another 60 days additional. The Assistant Attorney General has called attention to the fact that more than 90 days elapsed between the expiration of the term of court and the time that the bills were filed, and insists that, under the statute (article 845, C. C. P.), the court is not authorized to consider them, and under the construction of that article by the decisions of this court his contention must be sustained. Roberts v. State, 62 Tex. Cr. R. 10, 136 S. W. 483; Griffin v. State, 59 Tex. Cr. R. 424, 128 S. W. 1134. The same ruling, upon the same ground, must be made with reference to the statement of facts, to the consideration of which the Assistant Atorney General addresses additional objection that its consideration is precluded under the statute by reason of the fact it was not approved by the trial judge. The record sustains this point. Taylor v. State, 73 Tex. Cr. R. 192, 164 S. W. 844; Vernon's Texas C. C. P. p. 819, note 22, and cases referred to.

In the absence of statement of facts and bills of exception presenting the evidence, we are unable to sustain the motion to quash, based upon the ground that no election prohibiting the sale of intoxicating liquors had been held in Montague county.

The motion to quash the indictment upon the ground that the town of Bowie, in Montague county, is within ten miles of a certain ranch used by the United States aviators as a landing ground, cannot be sustained. Appellant contends that by chapter 12 of the Acts of the Fourth Called Session of the Thirty-Fifth Legislature, known as the ten-mile zone law, the local option prohibition law in the territory mentioned was repealed. This cannot be sustained for the reasons: First, that we have before us no facts showing that the point at which the offense is charged to have taken place was within ten miles of a military post as described in the act mentioned; and, second, because the act of the Legislature did not have the effect of repealing or suspending the prohibition of the sale of intoxicating liquors in localities in which prohibition was put in force by a vote of the people. The act of the Legislature mentioned was sustained as a valid law, as relating to the facts presented in the case of Ex parte Hollingsworth, 203 S. W. 1102. The basis of that decision is, that the ten-mile zone law constituted a regulation designating the locality in which the sale of intoxicating liquors could not be made. The fact that it is a regulation of the sale of intoxicating liquors precludes its operation in localities in which the sale is prohibited. Prohibition of the sale of intoxicating liquors interdicts the sale altogether, except for certain specified purposes mentioned in the local option law. The regulation of the sale of such liquors constitutes a requirement that those engaging in their sale must conform to prescribed rules. From Ex parte Hollingsworth, su...