Winston v. State , 32 Tex. Crim. 59 ( 1893 )

Appellant was indicted for a violation of the local option laws, in selling intoxicating liquor to one J.R. Miller, in justice precinct number 1 of Hays County. Appellant admitted the sale, but denied that local option had been legally adopted in said justice precinct. A jury was waived, and on hearing the evidence the court entered a fine of $25, from which appellant appealed.

It was shown on the trial, that the Commissioners Court met on the 9th day of November, and adjourned on the 11th, and the order was made on the 9th. The order on the minutes of said court ordering the election purported to have been entered on the 9th day of November, defining the district, and ordering the election to be held on the 25th of November. On December 7, 1891, an order was entered on the minutes, reciting that the order for the election was made on the 10th day of November, and that the court had duly canvassed the votes of the election held on the 25th of November, and declared the result of the election, etc. In the proclamation of the result published in the newspaper it was again recited that the election was ordered on the 10th day of November. In the entry of the county judge of the fact of the publication it was recited that the order for the election was made on the 9th of November.

Two questions are raised by appellant: first, if the order for the election was made on the 90 of November, as stated in the order of the county judge, then it was never published as required by law; second, if the order was made on the 10th, then fifteen days did not elapse before the election; and in either case it was fatal to the proceedings.

1. Appellant contends, because the order of the county judge stated the election was ordered on the 9th of November, while the proclamation and order of court declaring the result both recited the election was ordered on the 10th of November, the court erred in admitting the order of the county judge in evidence. There is nothing in this objection. In the first place, as shown by the original entry in the minutes, the recital in the county judge's order was correct. The election was ordered on the 9th of November; and the clerk made the mistake in the proclamation in reciting that the order was made on the 10th, which mistake was also in the Commissioners Court's order declaring the result. Can the more misprision or misrecital, by a clerk, of a date which could in no way affect the merits of the election, avoid the will of the people as expressed at the ballot box? In the McDaniel case, ante, page 16, where the order of the County Commissioners Court recited that the original order of the court ordering the election was made on the 8th of August, when in fact it was on the 13th of August, this court said: "Article 3233, Revised Statutes, does not require the order declaring the result to state the date of the election ordered. Such statement was mere surplusage;" citing Lipari's case, 19 Texas Criminal Appeals, 431, and others. In the next place, whether ordered on the 9th or 10th of November, it is clearly shown that but one local option election was ordered to be held by the Commissioners Court in precinct number 1 of Hays County, on the 25th of November, 1891; that it was the result of this same election which was declared and ordered published by the Commissioners Court at their special session on December 7, 1891, as required by article 3233, Revised Statutes, and that it was this publication for four weeks which the county judge was required to note on the minutes of the Commissioners Court, under article 3234, Revised Statutes, and anything more than this, inserted in the minutes, was surplusage, which could in no way affect the election.

2. But let us concede that the election was in fact ordered on the 10th of November, and that the proclamation and order declaring the result was correct, and that the mistake occurred in the entry of the county judge, which was but surplusage; does it follow that the election will be void under article 3229, Revised Statutes, which declares that the election shall be held on a day not less than fifteen nor more than thirty days from the date of said order? It is to be observed that the statute does not say "fifteen days, exclusive of the date of order and day of holding the election." It is said that the rule, supported by nearly all modern cases, is, that the time should be computed by excluding the day from which the time is to be reckoned, and including the last day of the number constituting the specific period. Suth. Stat. Con., 135. It is also held, that in the computation of time, the day from which the reckoning begins as well as that on which it ends, may be included or excluded, as will best preserve a right or exclude a forfeiture. O'Connor v. Towns, 1 Tex. 115; Schnierle's case, 5 Rich. Law, 299; Evans v. Darlington, 5 Blackf., 320; Meredith v. Chancey, 59 Ind. 466; Jones' case, 42 Ark. 93. Conceding, therefore, the order was in fact made on the 10th day of November, we think that the 25th of November was, in the language of the statute, "fifteen days from the date of the order;" so that, whether the order was made on the 9th, as appears on the minutes of the Commissioners Court, or on the 10th, as appears in the notices of the clerk, is wholly immaterial. The election was legally appointed for the time fixed by law, and the proceedings were valid.

3. We see no force in the proposition that the constitutional amendment adopted September 22, 1891, affected in any way the local option law now in force, or the local option districts established thereunder.

There are no other questions that need be considered. We find no reversible error in the proceedings.

Affirmed.

Judges all present and concurring.