Bowman v. State , 38 Tex. Crim. 14 ( 1897 )

Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $25 and twenty days imprisonment in the county jail, and prosecutes this appeal. The judgment of the lower court was affirmed at a former day of this term, but appellant comes before us on motion for rehearing.

There are but two questions that require consideration from us. Appellant contends that the venue was not sufficiently proved, it being insisted that Austin is the only witness who testified as to venue, and, after stating the purchase of the liquor, and from whom, he only states that this occurred in this precinct, and in Coleman County, State of Texas. The record shows that this trial occurred in Coleman City, and that Coleman City was in precinct No. 1 of Coleman County; and that this, in connection with the testimony of said witness Austin, sufficiently establishes the venue of the offense. Appellant also contends that the charge of the court to the effect that the jury were instructed that the burden of proof was on the defendant to show that the notices were not posted was error, and he cites us to a number of authorities upon this question; the contention being that article 3390, Revised Statutes 1895, which makes the order of the commissioners court declaring the result of the vote on local option, and absolutely prohibiting the sale of intoxicating liquors within the prescribed limits, prima facie evidence that all of the provisions of law have been complied with in giving notice of and holding said election, and in counting and returning the votes and declaring the result thereof, does not shift the burden of proof. Among other cases, we are referred to the case of Clark v. Hiles (Texas Sup.), 2 S.W. Rep., 356. We have examined that case, and find in it an exhaustive discussion of the meaning of the term "prima facie," as applied to evidence, and the court there holds that the use of the term "prima facie," as applied to evidence, does not shift the burden of proof. We would be inclined to hold with that case if this were a direct proceeding to invalidate the local option election, under article 3390, Revised Statutes 1895. We hold, however, in this case, that the order of the court validating the election is in the nature of a quasi judgment, and that in a collateral attack, as here made, it will be presumed that same was rightfully and properly entered, and, if appellant would overturn the same, the burden is on him to do so. See Irish v. State, 34 Tex.Crim. Rep.; Morton v. State, 37 Tex.Crim. Rep.. We accordingly hold that the court below did not err in giving the instruction placing the burden of proof upon the appellant.

The motion for rehearing is overruled, and the judgment affirmed.

Motion overruled.