
    COURSEY v. STATE.
    (No. 4597.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.
    Rehearing Denied Jan. 16, 1918.)
    1. Intoxicating Liquors <§=>205(2) — Prosecution — Indictment.
    Indictment alleging that commissioners’ court passed and published order declaring result of local option election, and thereupon the order was published for the time and in the manner required by law, sufficiently alleges publication of the order.-
    2. Criminal Law <§=3938(2) — New Trial— Newly Discovered Evidence.
    Affidavit showing that witness would have testified that accused did not work for him at the time another witness said he did, and at the time of the sale of the whisky, was not newly discovered testimony, as accused knew such facts at the time of the trial.
    Appeal from District Court, Coolie County; C. P. Spencer, Judge.
    Pump Coursey was convicted of violating-tlie local option law, and he appeals.
    Affirmed.
    J. L. Gettys, W. S. Moore, and Culp & Culp, all of Gainesville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law, his punishment being assessed at two years’ confinement in the penitentiary.

The indictment is attacked because of insufficiency in alleging the publication of the order declaring the result. The particular portion which is the subject of criticism is as follows:

“ * * * and thereupon the commissioners’ court of said county did pass and publish an order declaring the result of said election and prohibiting the sale of intoxicating liquors in said county, and thereupon said order was published for the time and in the manner required by law, and thereafter on or about the 15th day of December, A. D. 1916,” etc., appellant sold intoxicating liquors.

Under the authority of Watson v. State, 52 Tex. Cr. R. 551, 107 S. W. 544, and Jones v. State, 52 Tex. Cr. R. 519, 107 S. W. 849, this allegation in the indictment seems to be sufficient. This indictment does not come within the rule laid down in the Smitham Case, 53 Tex. Cr. R. 173, 108 S. W. 1183. There are quite a number of cases preceding the Smitham Case, all to the same effect, but in those cases the indictment only alleged that the order was published by the commissioners’ court. A comparison of the Jones and Watson Oases, supra, with that line of cases, including the Smitham Case, supra, show that the court has drawn a distinction between the character of indictment here set out and those mentioned in the Smitham and preceding cases, sustaining both lines of cases and holding them not in conflict or incongruous. We are of opinion that under the authority of the cases of AVatson and Jones, supra, this indictment is sufficient.

It is contended that the evidence is not sufficient. Under a number of cases, which we deem unnecssary to cité, we are of opinion the state’s evidence justified the verdict.

There is an affidavit of Price attached to the motion for new trial which would indicate, had he been a witness, he would have testified that appellant did not work for him at the time that state’s purchasing witness testified he did, and at the time of the sale of the whisky. This was not newly discovered testimony. All those facts, if true, appellant knew at the time of and before the trial, and no attempt was made to secure the attendance of Price.

As this record is presented to us we are of opinion the judgment should be affirmed, and it is accordingly so ordered.  