
    ROBERTS v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1912.)
    1. Intoxicating Liquors (§ 39) — Local Option — Adoption—Record.
    Under Rev. St. 1895, arts. 3391-3394, providing for local option elections, a county court record, purporting to show the proceedings taken for the adoption of local option, but failing to state for what purpose the local option election was held, and the minutes failing to show whether the result of the election was favorable or unfavorable, was not sufficient to show that local option had been adopted in the county.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 33; Dec. Dig. § 39.]
    2. Intoxicating Liquors (§ 36) — Local Option — Election — Order Declaring Result.
    Under Rev. St. 1895, arts. 3391-3394, declaring that when a local option election has been held the court shall declare the result, and that an order prohibiting the sale of liquor shall be published in a newspaper selected by the county judge for the purpose, etc., before local option law can be put in force, there must have been a vote favorable to prohibition shown by evidence before the court, and an order declaring the result and publication must show whether the vote was favorable or unfavorable.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 43, 44; Dec. Dig. § 36.]
    3. Indictment and Information (§ 101)— Wrongful Sale — Name of Purchaser-Variance.
    An, indictment for violating the local option law charged a sale to one “Joy Benge,” and on cross-examination accused testified that his name was George, but stated that he was called “Joy” by three persons. Held,, insufficient to show that he was commonly known as Joy, or was as well known by that name as by his real name, and that the indictment did not therefore properly allege his name as a purchaser of the liquor.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 272-277; Dec. Dig. § 101.]
    Appeal from District Court, Collin County; J. M. Pearson, Judge.
    Kid Roberts was convicted of engaging in the business of selling intoxicating liquors in Collin county, and he appeals.
    Reversed and remanded.
    Wallace Hughston, for appellant. C. E. Lane, Asst. Atty. Gen., for the state.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No, Series & Rep’r Indexes.
    
   DAVIDSON, P. J.

'Appellant was convicted of engaging in the business of selling in-toxieating liquor in Collin county.

1. His first contention is that the indictment is not sufficient to charge him with a violation of the statute. Under decisions he cites, his contention is correct. Keith v. State, 58 Tex. Cr. R. 418, 126 S. W. 569; Sutphen v. State, 59 Tex. Cr. R. 500, 129 S. W. 144; Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 126; Riggins v. State, 135 S. W. 126; Chapa v. State, 60 Tex. Cr. R. 365, 132 S. W. 127; Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1041. My Brethren, however, have overruled these decisions in Slack v. State, 136 S. W. 1073; Bell v. State, 137 S. W. 670; Dozier v. State, 137 S. W. 679. Under these later .decisions, this question will be decided adversely to appellant’s contention, and the indictment held sufficient. The writer’s views have been sufficiently expressed in the dissenting opinions in the Slack, Bell, and Dozier Cases, supra. It is unnecessary to discuss the matter further.

2. Another proposition is urged for reversal, to wit, the evidence does not show that local option was in effect in Collin county at the time appellant is charged with pursuing the occupation and engaged in the business of selling the intoxicants. The record shows the deputy clerk testified that the volumes shown him were volumes 10 and 11 of the commissioners’ court minutes and contained an order for a local option election in Collin county, including the petition, which began on page 370 of volume 11 and continued to page 373. The state further offered in evidence the order declaring the result of the local option election as found on page 521 of volume 11 of the commissioners’ court records; also the certificate; of the county judge found on pages 540 to 541 of volume 11 of the commissioners’ court records; also offered and read in evidence the minutes of the commissioners’ court’s order for a local option election, beginning on page 33 of volume 10, and including page 40. The state also offered and read in evidence the order declaring the result of the election, beginning on page 54 of volume 10 of the minutes and continuing to• page 55; also offered and read in evidence the order of the court, beginning on page 368, yol. 10, of the minutes of said commissioners’ court; also offered and read in evidence the judge's certificate of the local option election, found on page 96, vol. 10, of the minutes of said commissioners’ court; and, lastly, offered and read in evidence the date of the certificate of publication by the county judge, showing the date of the first local option election May 1, 1902, and certificate of. the county judge, showing the last election was dated September 3, 1907. This is the record in regard to a local option election.

It does not state for what purpose the local option election was held, whether for the prevention of the sale of intoxicants or stock running at large. Nor do the minutes show, as found in the transcript, the result of the election, whether it was favorable or unfavorable. The statute provides that when a local option election has been held the court shall declare the result. It further provides that the order of the court, declaring the result and prohibiting the sale of said liquor, shall be published for four successive weeks in some newspaper published in the county wherein such election has been held, which newspaper shall be selected by the county judge for that purpose. It further provides how .the publication shall be had m ease there be no newspaper published in the county, and that the publication in either mode shall be entered by the county judge on the minutes of the commissioners’ court. It also provides that entry thus made or copy thereof, certified under the hand and seal of the clerk of the county court, shall be held sufficient prima facie evidence of such fact of publication. Under the statute, before the local option law can be put into effect, it must be favorable to prohibition, and the evidence before the court must show that fact. The order declaring the result of the election must set out whether it was favorable or unfavorable, and the publication of the fact must also show whether favorable or unfavorable. This statute does not limit the publication or certificate of the county judge to cases wherein the election resulted favorably to the law. Whatever may be the result, the publication must be made. We are of opinion, therefore, the evidence in the record does not show that the local option law was in vogue in that county. Rev. St. 1895, arts. 3391-3394. If the certificate of the county judge certifying the publication was in the record, and that certificate was to the effect that the law had carried and had been duly published, it would have been prima facie evidence of the fact that all requisite steps had been taken to place the law in force.

There is another question in the case. The indictment charges a sale of intoxicants to two different persons, one of whom was alleged to be Joy Benge. His name was George and not Joy, and on cross-examination he testified that his name was George and not Joy. He stated that he was called “Joy” by three persons, but that his name was not Joy. It is necessary to charge the name of the purchaser, and, in case it is not known, that fact must be stated, or, if he is commonly known by some other than his real name, that will be sufficient. We are of opinion that the fact that three persons called him Joy is not sufficient to constitute the fact that he was commonly known as Joy, or that he was as well known by the name of Joy as by his real name, George. It is not necessary to cite the authorities on this question.

The judgment is reversed, and the cause is remanded.  