
    MANOS v. STATE.
    (No. 8409.)
    (Court of Criminal Appeals of Texas.
    May 28, 1924.
    Rehearing Denied June 27, 1924.)
    1. Constitutional law &wkey;>9(!) — Amendment held not vitiated by irregularities in publication of notices of proposed amendment.
    Amendment to Constitution as found in Gen. Laws, 36th Leg. p. 337, notice of which was required under Const, art. 17, to be published once a week for four weeks, commencing at least three months before the election, in one weekly newspaper of each county, held not rendered invalid by' the fact that in one county publication was for only three' weeks and in four counties was made within less than three months before the election, where the irregularities were not fraudulent, and the result of the election would not have been changed by eliminating vote in such counties.
    2. Constitutional law <3=39(1) — Publication, of proposed amendment in daily paper of general circulation instead of weekly paper held substantial compliance with Constitution.
    Under Const, art. 17, requiring that proposed amendments to the Constitution shall be published at certain designated times “in one weekly newspaper’’ of each county, etc., publication in a daily paper of general circulation instead of in a weekly paper held substantial compliance- with article 17.
    3. Intoxicating liquors <&wkey;,l 3 — Statute forbidding possession for purpose of sale held authorized by Eighteenth Amendment to federal Constitution.
    The statute (Acts 37th Leg. 1st Called Sess. [1921] e. 61 [Vernon’s Ann. Pen. Code Supp. 1922, art. 588%]), forbidding the possession of intoxicating liquor for the purpose of sale, held authorized by Const. U. S. Amend. 18, §§ 1, 2.
    4. Criminal law <&wkey;507(4)— Persons held not accomplices whose testimony must be corroborated as matter of law.
    One employed by officers to obtain evidence against one engaged in unlawful liquor traffic is not thereby rendered an accomplice, whose testimony, as a matter of law, requires corroboration, in view of Acts 37th Leg. 1st Called Sess. (1921) c. 61, § 2c (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%a3).
    5. Criminal law <&wkey;459 — Testimony of familiarity with whisky odor, and that article in evidence had such odor, held not improper.
    Testimony of witnesses who declared that they were acquainted with the odor of whisky, and that the article in evidence had that odor, held not improperly received.
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    Lee Manos was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    Dickens & Dickens, of Austin, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful possession of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.

The conviction is attacked upon the ground that there was such failure to observe the provisions of the Constitution relating to the amendment adopted at an election held on May 24, 1919, as vitiated the election. It is provided in article 17 of the Constitution that proposed amendments to the Constitution shall be duly published once a week for four weeks, commencing at least three months before the election, in one weekly newspaper of each county in which such a newspaper may be published. The proposed amendment, is found in the General Laws of the Thirty-Sixth Legislature, p. 337.

We learn from the bills of exception that in all counties of the state except one the proper notice of the election was published once a week for four successive weeks. In one county in which there were 2,831 votes cast, the publication was for only three weeks. In four counties the first publication was made at a time within less than, three months before the date of the election. The aggregate votes cast in those counties were 6,500. There are 252 counties in the state, and the majority of votes in favor of the amendment was 19,624. It will be observed that there was an effort to comply with the provisions of the Constitution with reference to the publication of the notice in each of the counties of the state. The record does not suggest that the irregularities mentioned arose from any willful or fraudulent conduct. The supposed irregularity in making the publication in a daily paper of geheral circulation is not regarded as important. The purpose of the Constitution was thereby met, and the deviation resulting from the selection of a daily rather than a weekly paper was a substantial compliance with the requirement. State v. Alderson, 49 Mont. 387, 142 Pac. 210, Ann. Cas. 1916B, 39; Ruling Case Law, vol. 6, p. 30, §§ 22 and 24; 12 Corpus Juris, 694.

The four counties in which the publication was for the requisite time, but in which it was not begun as early as contemplated by the Constitution, it is believed would not vitiate the election for the reason that the aggregate votes in the five counties mentioned would not have changed the result. The same principle would apply to that county in which the publication was for but three weeks instead of four; the total votes therein being 2,831, and the majority in favor of the amendment being 19,624. See State v. Winnett, 78 Neb. 379, 110 N. W. 1113, 10 L. R. A. (N. S.) 149, 15 Ann. Cas. 781. If in the conclusions stated we should be mistaken, the clause of the statute forbidding the possession of intoxicating liquor for the purpose of sale (Acts of 37th Leg. 1st Called Sess. c. 61 [Vernon’s Ann. Pen. Code Supp. 1922, art. 588%]), would nevertheless find support in the Eighteenth Amendment to the Constitution of the United States, which reads as follows:

“Section 1. * * * The manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
“Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.”

See, also, Rhode Island v. Palmer, 253 U. S. 350, 40 Sup. Ct. 486, 588, 64 L. Ed. 946; Chandler v. State, 260 U. S. 708, 43 Sup. Ct. 247, 67 L. Ed. 474; Ex parte Gilmore, 88 Tex. Cr. R. 531, 228 S. W. 199.

The bill complaining of the refusal to continue is qualified to the effect that, of the witnesses upon the absence of which the application is based, one testified and another present was not used. The application was a subsequent one. The testimony of those witnesses who did not appear was upon a collateral matter upon which the proof was not controverted.

No brief has been furnished. We have, however, given attention to each of the bills of exception, and have found nothing therein which, in the opinion of this court, warrants a reversal of the judgment.

The theory that the witness Wininger, a detective, operating under the directions of the sheriff, was by his connection with the transaction in question rendered an accomplice witness cannot be sustained. His relations to the matter were not materially different from that revealed by the record in other cases. With reference to the law relating to an accomplice witness, the Legislature has declared that in this character of an offense the purchaser, transporter, or possessor of prohibited liquors is not an accomplice witness. Acts of 37th Leg. 1st Called Sess. c. 61, § 2c (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%a3). It is the general rule that one in the employ of officers, by taking steps to get evidence against one who is engaged in the unlawful liquor traffic, is not thereby rendered one whose testimony, as a matter of law, requires corroboration. Underhill on Crim. Ev. (3d Ed.) § 125, p. 148, note 20; Lamm v. State, 94 Tex. Cr. R. 561, 252 S. W. 535; Laughlin v. State, (No. 7865) 260 S. W. 865, not yet [officially] reported; Creech v. State, 70 Tex. Cr. R. 229, 158 S. W. 277; Fox v. State, 53 Tex. Cr. R. 150, 109 S. W. 370.

The witnesses who declared that they were acquainted with the odor of whisky, and that the article in question had that odor, were not improperly received. Cathey v. State, 94 Tex. Cr. R. 599, 252 S. W. 534.

The issues of fact' were submitted in a charge against which no exceptions were addressed, and in which we have observed no fault.

The defensive theory advanced by the appellant was that he was not in conscious possession of whisky. We have been referred to no evidence, nor do we discern any which would render erroneous the failure of the court to give special charges presenting the theory of coercion or involuntary action on the pant of the appellant.

The judgment is affirmed.

On Motion for Rehearing.

Appellant in his motion for rehearing challenges the soundness of the conclusions reached in the original opinion, He also requests that action on the motion be passed until the fall term of this court, upon the ground that there has not been sufficient time within which to collate and present his views and authorities.

The record in the case was filed in this court on December 22, 1923. It was submitted during the month of May of the current year. Neither on the original submission nor in the motion for rehearing has the court been referred to any authority in support of the appeal.

Upon the precedents cited in the original opinion, and the facts revealed by the record, we are satisfied as to the correctness of our former ruling.

The motion for rehearing and the motion for postponement is overruled. 
      <gc»For other cases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes
     
      (S&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     