
    HIGHTOWER v. STATE.
    (Court of Criminal Appeals of Texas.
    April 2, 1913.)
    1. Witnesses (§ 380)—Impeachment—1Testi-mony Before Grand Juey.
    Under Code Cr. Proc. 1911, art. 815, permitting any party when facts stated by his witness are injurious to his cause to attack his testimony, a -witness 'who testified in a prosecution for violating the local option that he gave the money to another, who gave it to the accused, who got the whisky, was properly asked if he did not testify before the grand jury that he gave the money to accused, and himself got the whisky.
    [Ed. Note.—Eor other cases, see Witnesses, Cent. Dig. §§ 1210-1219; Dec. Dig. § 380.]
    2. Criminal Law (§ 539)—Evidence—Testi-mony Before Grand Jury.
    The state cannot rely upon the testimony of a witness before the grand jury to prove a material fact in a prosecution for violating the local option law.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1230; Dec. Dig. § 539.] .
    3. .Intoxicating Liquors (§ 236)—Local Option—Sufficiency of Evidence.
    Evidence in a prosecution for violating the local option law held to sustain a conviction in that it showed sales by accused.
    [Ed. Note.—Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dee. Dig. 1 236.]
    Appeal from Nacogdoches County Court; F. P. Marshall, Judge.
    Emma Hightower was convicted of violating the local option law, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic anil section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of violating the local option law, and her punishment assessed at a fine of $30 and 20 days imprisonment in the county jail.

The election is shown to have occurred on the 8th day of March, 1906, and so far as this record discloses this election was never contested. Article 5728 of the Revised Statutes provides for the contest of election on this question, and states that, after the expiration of the time named therein and no contest is filed, it shall be conclusively presumed that a valid and binding election has been had. Consequently those bills seeking to bring into review the validity of the orders cannot be considered.

The indictment in this case charged a sale of intoxicating liquors by appellant to Jude McKnight. The state introduced Jude McKnight, who testified that he and Henry Bush went to the house of appellant, and got some whisky from her. He further testified that “he gave Henry Bush 75 cents before they got to the house, and Bush got the whisky and delivered appellant the. money; that they got a quart of whisky; that he in person did not buy the whisky, but Bush bought it.” When the witness had thus testified, the state was permitted to ask him if he did not testify before the grand jury that he (McKnight) gave the money to appellant in the south room near the machine; and she gave him a quart of whisky, and he admitted he had so testified. Appellant objected to the state being permitted.to thus examine its witness. Under article 815 of the •Code of Criminal Procedure the court did not err in admitting the testimony. '

However, appellant is correct in stating that the state could not rely upon what the witness had testified before the grand jury to sustain its contention, and, if this was all the testimony, the evidence would be insufficient. After being asked in regard to what he had testified before the grand jury, the witness, in addition to admitting what- he had testified before the grand jury, then testified on the trial of this case: “I did go into defendant’s room and' she delivered me a quart of whisky, and I paid her 75 cents.” On cross-examination the witness denied paying the money to appellant and denied getting the whisky. The testimony of this witness is very unsatisfactory, and we would be unwilling to sustain a conviction thereon alone, but the state also introduced Henry Bush, who testified he went with McKnight to appellant’s house, and that McKnight did obtain the whisky from appellant. '

The jury under this testimony passed on the issue, and we will not disturb the verdict, and there was no error in refusing the peremptory instructions requested by appellant.

The judgment is affirmed.  