
    SHIPLEY v. STATE.
    (No. 5218.)
    (Court of Criminal Appeals of Texas.
    Nov. 27, 1918.
    On Motion for Rehearing, Jan. 15, 1919.)
    1. Indictment and Information <§=>137(6)— Intoxicating Liqtjoes <§=>205(1) — Matters of Form — Motion to Quash.
    In prosecution for violation of local option law, where information did not state whether election for local option was held before or after violation was made a felony, motion to quash should have been sustained as one of form.
    On Motion for Rehearing.
    2. Indictment and Information <§=>139— Motion to Quash — Time for Making.
    If verbal motion to quash had been made prior to trial, with an agreement to reduce it to writing and later file it, it would be in ample time, and the fact that it was filed subsequently and judgment entered subsequently did not affect the situation.
    3. Criminal Law <§=>1111(1) — Record—Conclusiveness.
    It being a controverted issue, whether motion to quash was made before trial, so that it was timely, court on appeal will be governed by the record, showing that it was filed the day after conviction; appellant offering no evidence by affidavit.
    Appeal from Rains County Court; O. H. Rodes, Judge.
    Jas. Shipley was convicted of violating the local option law, and he appeals.
    Affirmed.
    W'. F. Shipp and B. A. Carter, both of Emory, 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 a fine of $25, and 20 days’ imprisonment in the county jail.

It is charged in the complaint and information that appellant, on or about the 9th day of March, 1918, sold to Mayfield intoxicating liquors, after an election had been held by the qualified voters of Rains county in accordance with law. It does not recite at what time the election for local option was held, whether before or after the law punishing the sale of liquor was made a felony. Motion was made to quash fqr this reason, and also motion in arrest of judgment. Both were overruled, and this is the question presented for revision. The decisions draw the distinction between the preliminary motion to quash and the motion to arrest judgment. The motion to quash should be sustained, as being one of form and not of substance. The cases recognize this difference above stated. Under the decisions of this court the motion to quash should have been sustained.

See. Branch’s Crim. Law, p. -; Stone v. State, 206 S. W. 940, this day decided.

For this reason, the judgment is reversed, and the cause remanded.

On Motion for Rehearing.

This case was reversed recently. The state files a motion for rehearing. The reversal was based upon the proposition that the court overruled the motion to quash the indictment because of the failure to allege the date on which the local option law went into effect. He also filed a motion in arrest of judgment. The opinion was based upon that line of decisions which holds that the omission of such date is a formal matter, and in order to taire advantage of this defect in the indictment it must be by motion to quash. Such has been the holding since Hamilton v. State, 65 Tex. Or. R. 508, 145 S. W. 348.

The state makes a showing that the motion to quash was not in fact made until after the trial. There is a statement to the effect, from appellant’s counsel, that the motion was made before the trial with the understanding that it should be reduced to writing and filed later. This is controverted by the state, and sustained by the statement of the'officers, including the judge who tried the case. If as a matter of fact a verbal motion had been made prior to the trial of the case, with an agreement to reduce it to writing and file later, it would be in ample time, and the fact that it was filed subsequently, and the judgment entered subsequently, would not affect the situation. But this being a controverted issue, and the judge and officers sustaining the opposite of his contention, appellant offering no evidence by affidavit, we will be governed by the record, which shows the motion was filed a day following the conviction.

The state’s motion will be granted, following that line of cases since the rendition of the Hamilton Case, supra, and the reversal set aside, and the judgment affirmed. 
      e§=>For other cases see same topic and K'SY-NUMBER in all Key-Numbered Digests and Indexes
     