
    [No. 1354.]
    J. J. Pinckard v. The State
    1. Local Option Law—Penalty.—Charge of the Court instructing the jury that the minimum fine for the violation of the Local Option Law is fifty dollars, is error; the minimum being fixed by statute at twenty-five dollars.
    2. Same.—Pending this appeal, the Local Option Law was repealed in Polk county by popular vote. Held, that such repeal is fatal to the judgment of conviction; and as it vitiates it in any event, the cause is dismissed.
    Appeal from the District Court of Polk. Tried below before the Hon. E. Hobby.
    The opinion discloses the entire case. Fifty dollars was the fine imposed by a verdict of conviction.
    
      J. M. Crosson, for the appellant.
    
      O. S. Eaton, for the State.
   Willson, J.

Defendant was convicted of a violation of the local option law, and his punishment assessed at a fine of fifty dollars, under an instruction contained in the charge of the court that, if the jury found the defendant guilty, they would assess his punishment at a fine of not less than fifty dollars nor more than two hundred dollars. This was radical error for which the judgment must be reversed. The minimum punishment for this offense prescribed by law is a fine of twenty-five instead of fifty dollars. (Penal Code, Art. 378.) This article of the Code is the law in force,.and which was in force at the time of the offense and of the trial. (Robertson v. The State, 12 Texas Ct. App., 541.)

It further appears that during the pendency of this appeal the local option law has been annulled and rescinded in Polk county in the manner required by law. This being the case, there would be no support for the judgment of conviction, if it were in all other respects valid. (Fitze v. The State, decided at this term, and authorities there cited, ante, p. 372.)

The judgment is reversed and the prosecution is dismissed.

Reversed and dismissed,

Opinion delivered January 27, 1883.  