
    SMITH v. STATE.
    (No. 4518.)
    (Court of Criminal Appeals of Texas.
    June 6, 1917.)
    1. Criminal Law <@=>1099(1) — Appeal — Statement op Facts — Time oe Filing.
    Under Vernon’s Ann. Code Or. Proe. 1916, ai't. 844a, a statement of facts in the county court must be filed during the terra, except when an order of court is made extending the time, and then it must be filed within the time as extended.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 286&-286S, 2874.]
    2. Criminal Law <@=>1097(4) — Appeal—Absence oe Statement oe Facts.
    A judgment will not be reversed on account of rulings on the admission of evidence in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2934, 2938, 2939.]
    3. Criminal Law <@=>290 — Former Conviction-Necessity oe Pleading.
    In the absence of a plea of former jeopardy or former conviction, evidence showing that defendant had been convicted in federal court for the same transaction is immaterial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 666.]
    4. Criminal Law <@=>1166% (12) — Harmless Error — Remarks oe Court — Local Option Election — Publication.
    In view of Rev. St. art. 5722, providing that entry by county judge of fact of publication of result of local option election shall be sufficient prima facie evidence of such publication, a remark of the judge that it is conclusive proof is harmless, where there is no contest about the publication.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3125.]
    5. Intoxicating Liquors <@=>236(1) — Local Option Election — Burden oe Prooe.
    State sustains burden of proving that local option election has been held and notice published, by proof of the entry by the county judge of fact that order of commissioners’ court declaring result of- election has been published.
    Appeal from Polk County Court; B. F. Bean, Judge.
    Jock Smith was convicted of the offense of selling intoxicating liquors in prohibition territory, and appeals.
    Affirmed.
    E. B.. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, .T.

Appellant’s conviction was by a jury verdict assessing Ms punishment at a fine of $25 and 20 days’ imprisonment in the county jail, upon an indictment charging him with the sale of intoxicating liquors in prohibition territory.

The term of court at which appellant was tried adjourned on the 3d day of February, 1017. The statement of facts was filed on the 24th diay of the same month, which was more than 20 days after the adjournment of the term, and upon this ground the Assistant Attorney General has filed a motion to strike out the statement of facts, which, under article 844a, Vernon’s Code of Criminal Procedure, must he sustained. Looper v. State, 62 Tex. Cr. R. 98, 136 S. W. 792; also other cases cited in Vernon’s O. C. P. p. 824. Under this article, as construed, statement 'of facts in the county court is rer quired to be filed during the term, except when an order of the court is made extending the time. An order in the present case was made extending the time 20 days.

'The first and third bills of exception relate to the exclusion of testimony proffered by the appellant to show that he had been convicted in the federal court for the same transaction upon which this prosecution is based. These bills, as qualified, deny this fact, and declare that such prosecution that was had against him in the federal court was for selling intoxicating liquors without a revenue license contrary to the laws of the United States. In the absence of a statement of facts, this court, under its established practice, would be precluded from reversing on account of the rulings upon the admission of evidence. Hobbs v. State, 28 S. W. 814; Oakery v. State, 158 S. W. 285; and other cases cited in Vernon’s C. C. P. art. 844, note 9, p. 814. However, if the bills were considered, we find no plea of former jeopardy or former conviction. Even if this testimony would have been admissible under any circumstances, our attention has been called to none under which it would be material in the absence of pleas of this character.

Bill No. 2 complains of the remark of the court to the effect that the order of the commissioners’ court declaring the result of the local option election and prohibiting the sale of intoxicating liquors had been published for four successive weeks was conclusive proof of the publication. Article 5722 of the Revised Statutes prorides that the entry by the county judge of the Tact of publication shall be sufficient prima facie-evidence of the publication. In view of this statute, we are unable to comprehend how the remark of the county judge would have been harmful, especially in view of the fact that the record does not disclose there was any contested issue about the publication. The burden of proof was upon the state to prove that the election had been held and notice published, but this was done by the certificate mentioned, and was sufficient, under the rulings of this court, to authorize an instruction to the jury that prohibition was in effect. Branch’s Ann. P. C. § 1233, p. 697, and cases cited; Irish v. State, 34 Tex. Cr. R. 130, 29 S. W. 778.

We have reviewed the bill of exceptions, and, finding no error, it is the order of the court that the judgment of the lower court be affirmed. 
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