
    Rufus Ferguson v. The State.
    No. 1715.
    Decided April 17, 1912.
    Rehearing Granted May 8, 1912.
    • 1.—Local Option—Recognizance—Reinstatement.
    Where the recognizance did not state the punishment assessed, the same was insufficient. However, a new recognizance conditioned as the law requires having been filed, the appeal was reinstated.
    2.—Same—Indictment—Date of Election.
    Where appellant filed a plea to the insufficiency of the indictment in the Appellate Court, contending that the same did not allege the date when prohibition was adopted in the county of the prosecution, the same came too late.
    3. —Same—Law in Force.
    Proof must be made that the local option law had been adopted in the county of the prosecution. Otherwise, a conviction can not be sustained.
    4. —Same—Newly Discovered Evidence.
    Where the alleged newly discovered evidence was material and had not come to the knowledge of the defendant before trial, a motion for new trial should have been granted.
    Appeal from the County Court of Madison. Tried below before the Hon. Tom D. Clark.
    Appeal from a conviction of a violation of the local option law; penalty, a fine of $25 and twenty days confinement in the county jail.
    The opinion states the case.
    
      J. M. Brownlee and Carl T. Harper, for appellant.
    On the question of the insufficiency of the indictment: Head v. State, 64 Texas Crim. Rep., 112, 141 S. W. Rep., 536.
    
      C. E. Lane, Assistant Attorney-General, for the State.
   HARPER, Judge.

The Assistant Attorney-General has moved to dismiss the appeal, because the recognizance is not in compliance with article 919 of the Code of Criminal Procedure. The recognizance does not state the punishment assessed, and the motion is sustained. May v. The State, 40 Texas Crim. Rep., 196; Johnson v. The State, 49 S. W. Rep., 594; Martin v. The State, 89 S. W. Rep., 642.

Appeal dismissed.

Dismissed.

ON REHEARING.

May 8, 1912.

HARPER, Judge.

On a former day of this term this ease was dismissed on account of a defective recognizance. A new recognizance, conditioned as required by law, has been filed.

Appellant in this court, for the first time, files a plea to the insufficiency of the indictment, because it does not allege the date when prohibition was adopted in Madison County. The plea comes too late. Such plea must he presented before trial, and will not be considered after the verdict is rendered. Hamilton v. State, and Myers v. State, recently decided but not yet reported.

Appellant presented a special charge requesting the court to instruct the jury to return a verdict of not guilty, as the State had introduced no evidence that local option had been adopted in Madison County. He reserved a bill of exceptions to the action of the court in refusing said instruction, and the court, in approving the bill, certifies that no evidence was introduced. We can hardly see upon what ground a new trial was refused under such circumstances.-Proof must he made that the local option law has been adopted, otherwise a conviction can not be sustained..

A plea of newly discovered evidence was urged in the motion. The State’s witness had testified that he purchased whisky from appellant, and secured a bottle from Howard Terrell, who was present. Terrell files an affidavit, attached to the motion, that such evidence is not true, and that the prosecuting witness never obtained a bottle from him, nor was he ever present when appellant sold any whisky. Under the circumstances we think a new trial should have been granted on this ground, as 'appellant makes an affidavit that he never knew that such would be the testimony until the prosecuting witness testified, 'and he could not then obtain the attendance of the witness Terrell.

The judgment is reversed and cause is remanded.

Reversed and remanded.  