
    CONE v. STATE.
    (No. 6561.)
    (Court of Criminal Appeals of Texas.
    Jan. 11, 1922.)
    1. Intoxicating liquors <&wkey;!3 — Local option law held repealed by amendment to Constitution.
    Vernon’s Ann. Pen. Code, 1916, art. 597, was repealed by popular vote by the adoption of the amendment to Const, art. 16, § 20, eliminating the local option privilege and prohibiting the sale of intoxicating liquors throughout the state under a penalty fixed in the Constitution.
    2. Criminal law <S&wkey;I5 — Prosecution for unlawful sale of liquor held not maintainable under repealed statute.
    A prosecution for selling intoxicating liquor in local option territory is not maintainable under Vernon’s Ann. Pen. Code 1916, art. 597, where the sale took place after the repeal of such statute by Const, art. 16, § 20; the saving clause of the provision of the Constitution covering offenses occurring prior to the adoption of the amendment only, and Vernon’s Ann. Pen. Code 1916, art. 16, providing that a prosecution under a repealed statute may only be maintained by virtue of a saving clause.
    3. Intoxicating liquors &wkey;>l3 — Unlawful sales held punishable under amendment to Constitution.
    Sales of intoxicating liquor occurring after the adoption of amended section 20, art. 16, of the Constitution, abolishing local option territory, and before the passage of the Dean StateWide Prohibition Law, are prohibited and punishable under Const, art. 16, § 20.
    Appeal from District Court, Rockwall County; Joel R. Bond, Judge.
    E. G. Cone was convicted of unlawfully selling intoxicating liquor, and be appeals.
    Reversed and remanded.
    T. B. Ridgell, of Breckenridge, and Florence, Florence & McClelland, of Gilmer, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. :T.

The conviction is for the unlawful sale of intoxicating liquor. The indictment, filed on the 14th day of October, 1919, charges appellant with the sale of intoxicating liquor in Rockwall county, where such sale was prohibited by a vote of the people.

The statute under which the prosecution is had is article 597, Vernon’s Texas Crim. Statutes, vol. 1, p. 306. It was enacted to punish violations of the local option prohibition law (article 16, § 20, of the Constitution of the state). Under that provision of the Constitution, it was optional with certain subdivisions of the state to prohibit the sale of intoxicating liquors, and laws were passed governing the exercise of this option by election. • See Revised Statutes 1911, title 88.

On the facts it is shown that, by virtue of an election held under that title, the sale of intoxicants was prohibited in Rockwall county. On July 23, 1919, an amendment to section 20, art. 16, of the Constitution, which amendment had been previously adopted by a vote of the people of the state, became effective. As amended, the local option privilege was eliminated and the sale of intoxicating liquors was prohibited throughout the state under a penalty fixed in the Constitution of confinement in the penitentiary for not less than one nor more than five years. This amendment contained a saving clause in the following words:

“Liability for violating any liquor laws in force at the time of the adoption of this amendment shall not be affected by this amendment, and all remedies, civil and criminal, for such violations shall be preserved.” General Laws 36th Leg. p. 338, subd. (c).

The date of the offense, as laid and proved, was in September, 1919. At that time the prohibition of the sale of intoxicating liquors in the state and in Rockwall county was not in consequence of the adoption of the so-called local option prohibition law, but was by virtue of the amended section 20, art. 16, of the Constitution.

It is obvious that article 597 of the local option prohibition law was repealed by the adoption of the. amendment to the Constitution that became effective in July, 1919. It is therefore made clear that the indictment and conviction of the appellant was not under a law existing at the time of the commission of the offense or the filing of the in-■dietment, but was referable directly to a law which had been previously repealed. By statute, it is declared, in substance, tha€~a prosecution cannot be maintained under a repealed statute, unless in such statute there is contained a saving clause covering the particular act. See article 16 of the Penal Code,

The reservation contained in the amended section 20, art. 16, of the Constitution, quoted above, embraces offenses committed prior to the adoption of the amendment but not those oecuring at a subsequent date. In the interim between the adoption of the amendment to the Constitution mentioned and the passsage of the so-called “Dean State-Wide Prohibition Law,” which became effective on the 21st day of October, 1910, the sale of intoxicating liquors throughout the state was prohibited, and the punishment fixed by section 20, art. 16, of the Constitution. If the date of the offense was that charged and shown by the testimony in the present record, the prosecution should be under that provision. The Dean Law contains a saving clause which would operate to preserve the rights of the state in the instant case. See Acts of the Thirty-Sixth Legislature, Second Called Session, c. 78, § 41; also Cone v. State (No. 6562) 236 S. W. 486, recently decided.

For the reason stated, the judgment of conviction is reversed and remanded. 
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