
    KINNEBREW v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct 30, 1912.)
    1. Criminal Law (§ 1086*) — Arpeal — Record— Local Option — Existence op Prohibition.
    To sustain a conviction for pursuing the occupation of selling intoxicants in a prohibition county, the record must show that prohibition was in force in the county at the time of the alleged offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2770, 2772, 2794; Dec. Dig. § 1086.*]
    2. Criminal Law (§ 304*) — Evidence — Judicial Notice — Local Option.
    The Court of Criminal Appeals cannot judicially know in what counties the people have adopted prohibition.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 295%, 700-717; Dec. Dig. § 304.*]
    3. Intoxicating' Liquors (§ 205*) —Local Option — Offenses.
    The pursuit of the occupation of selling intoxicants in a prohibition county is a distinct offense from merely making a sale therein, and the charge in a prosecution for the former offense should define the elements of the offense.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. § 205.*]
    Appeal from District Court, Jasper County; W. B. Powell, Judge.
    Charley Kinnebrew was convicted of pursuing the occupation of selling intoxicants in a prohibition county, and he appeals.
    Reversed and remanded.
    Forse & Wigley and Wightman & Hancock, all of Newton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted for and convicted of pursuing the occupation of selling intoxicating liquors in a county where prohibition had been adopted.

The record is fatally defective, in that the statement of facts does not show that prohibition is in force in Jasper county, Tex. The record contains a memorandum stating that the state introduced certain orders of the commissioners’ court showing that an election was held on the 8th day of June, 1902, but nowhere discloses the result of the election, whether for or against prohibition. Why the prosecuting officers will send us records in this condition we are at a loss to understand. Evidently these orders as introduced would show the result of the election, and why not copy them in the statement of facts, or at least a sufficient portion of them to show the result of the election? Perhaps days were spent in the trial of this case, yet, when it comes to mating up the record for this court to review, a most material fact necessary to be proven is omitted from the record, and yet it is signed by the district judge and district attorney, and agreed to as a correct statement of the facts proven. Such negligence is almost inexcusable. There is no doubt a conviction could not have been obtained. if this fact had not been proven, and yet the record is sent to us with this material fact omitted.

Wherever prohibition has been adopted, that fact must be shown by the record, for we do not judicially know in what' portions of Texas the people have adopted this law. It is left to their option, and, if they have so elected, it must be shown.

There are other matters complained of in the record, but we do not deem it necessary to discuss them, as this omission from the record will necessitate a reversal of the case.

We will say, however, that the pursuit of the business or occupation is a different and distinct offense from making a sale, and the elements of the offense ought to be defined in the charge and proven on the trial.

The judgment is reversed, and the cause is remanded.  