
    (85 Tex. Cr. R. 151)
    VENN v. STATE.
    (No. 5279.)
    (Court of Criminal Appeals of Texas.
    March 5, 1919.
    On Motion for Rehearing, April 2, 1919.)
    1. Intoxicating Liquobs <&wkey;17 — StateWide Peohibition — Constitutionality.
    .The state-wide prohibition law, is unconstitutional.
    2. Indictment and Information <&wkey;132(l)— Statutes <&wkey;168 — Election By Accused-Void Statute.
    A void act of the Legislature cannot repeal existing valid statutes, and a void penal statute, not being operative, can furnish no ground for an accused to elect under which act he would be prosecuted, or to elect as to which punishment should be inflicted in case of a conviction.
    3. Juey &wkey;>95 — Competency — Peioe Sebv-ice in Similae Case.
    Jurors who served in a prosecution for violation of local option law, in which a verdict of guilty has been rendered against defendant, could not be challenged for cause in a later prosecution for a violation of the local option law against the same defendant, where the violation charged was sale at a different time, and to different parties and under different circumstances.
    Appeal from Upshur County Court; W. H. McClelland, Judge.
    Will Venn was convicted of a violation of the local option law, and he appeals.
    Affirmed.
    Briggs & Florence, of Gilmer, for appellant. E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was had in the county court of Upshur county for violating the local option law. It being a misdemeanor, the prosecution was brought by complaint and information.

Appellant interposed a plea to the jurisdiction based upon the proposition that the act of the recent called session of the 'Legislature, enacting state-wide prohibition (Acts 35th Leg. [4th Called Sess.] c. 24), thereby repealed the local option law and its operation. The basis of this plea to the jurisdiction was that he, under those conditions, had the right to elect under which statute he should be tried, and demanded a trial under the state-wide prohibition act instead of local option statute. The court overruled the plea. Had the state-wide act been constitutional, another question / would have been- presented, but said act is unconstitutional. See Ex parte Myer, 207 S. W. 100, White v. State, 210 S. W. 200, and Jarrott v. State, 209 S. W. 663, recently decided. A void act of the Legislature cannot and does not repeal existing valid statutes, and therefore the void statute, not being operative, would furnish no ground for an accused to elect under which act he would be prosecuted, or to elect as to which punishment should be inflicted in case' of a conviction. The court, therefore, did not err in overruling appellant’s contention.

Challenge for cause was urged against three jurors who had served in a previous case against appellant in which a verdict of guilty had been rendered. The theory of the cause of challenge was that the jurors were not fair, and were either biased or prejudiced, or had come to some conclusion as to defendant’s guilt by reason of the facts in the prior case. Had the two cases been based upon the same or similar facts, the challenge for cause should have been sustained, but, if not, the court correctly overruled the challenges. See Segars v. State, 35 Tex. Cr. R. 45, 31 S. W. 370; Obenchain v. State, 35 Tex. Cr. R. 400, 34 S. W. 278; Arnold v. State, 38 Tex. Cr. R. 1, 40 S. W. 734; Irvine v. State, 55 Tex. Cr. R. 347, 116 S. W. 591; Edgar v. State, 59 Tex. Cr. R. 252, 127 S. W. 1053. A number of other cases could be cited to the same effect. There is a line of cases holding that where the facts are the same or similar in both eases, challenge for cause should be sustained, but as the facts in this case are not similar to those had in the trial of the former ease, we are of the opinion that line of cases does not obtain here. The facts in this case and the prior ease are not similar. The sale was at different times, to different parties, and under different circumstances. The evidence introduced on the former trial was not before the jury in the instant case. The jurors fully qualified by answers on their voir dire, and' the court qualified the bill by stating the If acts were .entirely different in the two cases, and therefore he overruled the challenges for cause.

As presented we are of opinion there is is no such error shown under the cases above cited as would require this court to reverse the judgment; it is therefore affirmed.

I/ATTIMORE, J.

I concur in the result reached, without expressing an opinion as to the constitutionality of the state-wide act, which is not here necessary.

On Motion for’Rehearing.

DAVIDSON, P. J.

Appellant has filed a motion for rehearing, alleging error in the affirmance on a former day of the term, in that the court should have sustained his exceptions to the jurors on the theory that they had tried another case similar in its nature, and therefore the challenge for cause should have been sustained and the jurors not permitted to sit in this ease. We have gone over the matter again in the light of the motion and what was previously written. We do not know that it would add anything to what was said in the original opinion to express the views of the court with reference to the conditions as shown by the record and the exceptions. We are still of opinion it is not brought within the rules of the authorities cited by appellant, and that this was not a similar case, but a different case with different facts, occurring at a different time and under different circumstances. The mere fact that defendant was the same in both cases would not render' it similar - in nature under the circumstances stated.

We are of opinion the motion is not well taken and should be overruled, which is accordingly ordered. 
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