Morton v. State , 37 Tex. Crim. 131 ( 1897 )

Conviction for selling beer to W.W. Jones, in Precinct No. 5, Hunt County, local option being in force in said precinct. The State did not introduce any evidence as to the local option election being held in said precinct. The order for the election, the order declaring the result of the election, or the publication thereof, were not introduced in evidence. The defendant, in his testimony, admitted, in effect, that local option was in force in said precinct when this transaction, claimed to be a sale by the State, occurred. This testimony could have been excluded at the instance of the appellant, if he had desired to do so. He could have demanded the record evidence, to-wit: that which was necessary to establish the fact that local option was in force in Precinct No. 5, Hunt County. We desire to state in this opinion the facts necessary to be proved by the State in a prosecution for violating the local option law. Of course, the sale must be proved; the order for the local option election should be introduced in evidence. When this order is introduced, the presumption arises prima facie that all of the provisions necessary to give the order validity, and to clothe the court with jurisdiction to make it, have been fully complied with. It is not necessary for the State to introduce the petition in cases in which such is required; the order for the election is prima facie evidence that such a petition was presented to the court as is required by law, and the burden is upon the defendant to show that this was not the case. The court, without a petition, can order an election (we are alluding to cases in which the petition is necessary). After the election, at a proper time, the court shall make an order declaring the result of said vote, and absolutely prohibiting the sale of intoxicating liquors within the prescribed limits; and this order is held to be prima facie evidence that all of the provisions of the law have been complied with in giving notice of the holding of said election, and in counting the votes and declaring the result thereof. The State should introduce in evidence the fact that the order of the court declaring the result of the election, and prohibiting the sale of the intoxicating liquors, has been published, as is required by Art. Rev. Stat., 1895. When these proofs have been made, the State's case is prima facie established. To recapitulate: The State should prove (1) the order for the election; (2) the order declaring the result of the election, and prohibiting the sale of intoxicating liquors; (3) that proper notices of this last order have been published, as required by Article 3391; (4) the sale within the precinct, town, or city, or subdivision, as the case may be. We are not to be understood as holding that the proof should be introduced in the order named, but that, when this proof has thus been made, the State's case is prima facie established. The defendant, however, can admit the existence of local option. This, of course, would supersede the necessity of making the proof above indicated. We have had several cases before us in which the parties admitted that local option was in force in the district in which the sale was alleged to have been made. In bar of this prosecution, appellant interposed a plea of former acquittal. His plea contained the affidavit, information, trial, verdict of the jury, and judgment. The information charged that the sale occurred on the 1st of September, 1895. The information in this case alleges that the sale took place on the 25th day of August, 1895. Jones, to whom the beer is alleged to have been sold swears that he purchased beer about the 25th of August, and also about the 1st of September, 1895. This is not denied by appellant. The plea also alleges that this is the same transaction as that for which he had been aquitted. This was a very essential allegation. In support of the plea, appellant introduced in evidence the complaint, information, trial, verdict, and judgment and nothing further. Now, while it is true that, notwithstanding the different dates, the State would have been permitted to convict for the sale under either indictment on either date; yet, to support the plea, the proof must show that it was the same transaction, — that is, the same sale. The burden is upon the defendant to prove his plea. Everything shown in the evidence in support of the plea may be true, and still the transactions be totally different. There was no proof to sustain the allegation in the plea that it was the same transaction. Appellant complains because the court did not give the jury the special instructions requested by him in regard to his plea. The court correctly instructed the jury in regard to this plea, assuming that there had been some evidence tending to show that the transactions were the same. As there was no such evidence, the court should have instructed the jury to disregard the plea altogether. Appellant's bill of exceptions Nos. 2 and 4 complain of the action of the court in refusing to submit to the jury certain special instructions. Under the facts of this case, the court acted properly in refusing said special instructions, but did give the jury proper instructions upon the matter embraced in the special instructions. Bill of exceptions No. 5 complains of the charge of the court in regard to the appellant's plea of former acquittal. The charge of the court contains the law. In the motion for a new trial it is insisted that the verdict of the jury was contrary to the law and the evidence; that the undisputed facts show that the defendant was the agent of Jones, and acted only the the instance of Jones in ordering and taking care of the beer. We do not so view this record. We are of opinion that the evidence amptly supports the verdict. It is remarkable that if appellant ordered the cask of beer for Jones, which cost $11, he should be selling him beer at 15 cents per pint bottle, and dividing the profits with a man at Dallas, from whom the cask of beer was obtained. We deem it unnecessary to discuss the facts in the case. The judgment is affirmed.

Affirmed.

[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter].