
    JOHNSON v. STATE.
    No. 18406.
    Court of Criminal Appeals of Texas.
    June 10, 1936.
    David Fitzgerald, of Memphis, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is the unlawful sale of intoxicating liquor; penalty assessed at a fine of $200 arid confinement in the county jail for 30 days.

The count in the complaint and information upon which the prosecution is based reads as follows: “And the affiant aforesaid upon his oath aforesaid, does further swear that he has good reason to believe and does believe and charge, that at the aforesaid time and place in said county and state, the said defendant Walter Johnson, did then and there unlawfully sell to Bud Johnson one bottle of liquor capable of producing intoxication against the peace and dignity of the State.”

There is no averment to the effect that an election was held and that as a result thereof the sale of liquor in said county was prohibited.

In passing we refer to the case of Whitmire v. State, 94 S.W.(2d) 742, in which an opinion was delivered by this court on May 20, 1936, holding an indictment or information similar to that in the present case insufficient to charge the offense.

Upon the authority of the case mentioned, the judgment must be reversed and the prosecution ordered dismissed; and it is so ordered.  