
    DOBSON v. STATE.
    (Court of Criminal Appeals of Texas.
    March 27, 1912.
    Rehearing Denied May 1, 1912.)
    1. Indictment and Information (g 133)— Cbiminal Law (§ 970) — Defects—Manner of Raising.
    In prosecutions for violations of the local option law, objections that the indictment failed to allege that the law was in operation in the county where the violation was charged to have occurred are matters of form only, and cannot be raised on motion in arrest, but must be raised in limine on motion to, quash.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 454-468; Dec. Dig. § 133 ; Criminal Law, Cent. Dig. §§ 2445-2462; Dec. Dig. § 970.]
    2. Criminal Law (§ 942) — New Trial — Newly Discovered Evidence.
    A conviction for a violation of the local option law cannot be set aside because of a discrepancy between the testimony of the prosecuting witness upon the final trial and that given in the examining trial, where this testimony was not introduced to discredit the prosecuting witness, although accused and his counsel were aware of the same, as it cannot be considered as newly discovered evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2331,2332; Dec. Dig. § 942.]
    Appeal from District Court, Bowie County; P. A. Turner, Judge.
    Lula Dobson was convicted of violating the local option law, and appeals.
    Affirmed.
    1-Iart, Mahaffey & Thomas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law; her punishment being assessed at one year’s confinement in the penitentiary.

1. The indictment fails to allege the time the said law was put into operation in the county. Appellant moves in arrest of judgment for this reason. My Brethren hold in Hamilton v. State, 145 S. W. 348, and Meyer v. State, 145 S. W. 919, recently decided, that this is a matter of form, and not of substance, and cannot be raised on motion in arrest of judgment; that, in order to take advantage of this defect in the indictment, it must be raised in limine, on motion to quash. The writer dissented in those cases, and wrote some of the reasons for such dissent in Hamilton v. State, supra. Some of the decisions were cited in the Hamilton Case upon which the writer relied as justifying the conclusion .that the indictment in those cases as in this ease was insufficient and the motion in arrest of judgment was made in time. Under the majority opinion in those eases, however, this proposition of appellant is not well taken.

2. Appellant insists the judgment should be reversed because of the discrepancy in the testimony of the witness Morgason upon the final trial and his testimony in the examining trial. The examining trial testimony of Morgason was not produced before the jury on final trial to impeach or contradict his testimony on final trial. Appellant’s counsel, who represents her here on this appeal, did not defend her in the examining trial or on final trial in the district court. There is a sharp difference between the testimony of the witness Morgason as given upon the two trials. The examination of the statement of facts, however, as contained in this record, clearly shows that counsel who did represent appellant before the district court was aware of the testimony of Morgason before the examining court, and asked questions of him looking to a contradiction of his testimony given in the district court by that given on the examining trial. Several questions were asked the witness with reference to his testimony in the examining trial. The examining trial evidence, however, was not introduced before the jury. This matter, then, cannot be considered as newly discovered evidence, because appellant and her attorney knew of the examining trial testimony and the discrepancies between Morgason’s testimony upon the two trials. The testimony of Morgason is very unsatisfactory, and it is evident, from the manner of his testifying and his evidence brought up in the record, that he is a man of very weak mind and frail memory. The writer believes that the liberty of the citizenship of this state should not be taken upon such uncertain testimony. He was not clear in his statement of identification of appellant. He was examined and cross-examined, and leaves the matter in a very uncertain condition as to whether she was the party who sold him the whisky, yet the jury believed she was sufficiently identified as the seller.

As the record presents the case, the judgment will be affirmed.  