
    MILLER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.)
    1. Intoxicating- - Liquors (§ 36)—Violation ojt Local Option—Prosecution—Attacking Election.
    Objection that there was not proper notice of a local option election cannot be made on a prosecution for. pursuing', the occupation, of selling intoxicating liquors in prohibition territory; Rev.' Civ.’St. 1911, art. 5728, providing that if the election is not • contested, as there provided, it shall be conclusively presumed to be valid and binding on ali courts.
    ,[Ed. Note.,—For other- cases, see Intoxicating Liquors, Cent. Dig. §§ 43, 44; Dec. Dig. § 36.]
    2. Intoxicating Liquors (§ 230)—Pursuing ' Business in Prohibition Territory—Evidence.
    The prosecution being for pursuing the occupation of. selling intoxicating liquors in prohibition territory, testimony that defendant at various other times, after selling to witness, solicited him to make purchases is admissible.
    [Ed. Note.—For other cases,, see Intoxicating Liquors,. Cent. Dig. § 290; Dec. Dig. § 230.]
    3. Intoxicating Liquors (§ 230)—Pursu-ing Business in Prohibition Territory-Evidence.
    •Evidence-of whisky and alcohol being frequently shipped and delivered to defendant is admissible, on a prosecution for pursuing the business of selling intoxicating liquors in prohibition territory.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 290; Dec. Dig. § 230.]
    4. Ceimitíal Law (§ 741) — 1Trial—Peremp-tory Construction.
    Where the evidence would sustain a conviction, error cannot be predicated on refusal to peremptorily instruct a verdict of not guilty.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1138,1221, 1705, 1713, 1716, 1717, 1727, 1728; Dec. Dig. § 741.]
    5. Criminal Law (s 1134) — Appeal—Review— Overruling Motion for New Trial.
    The overruling of a motion for new trial, being unnecessary, presents no question for review further than would be presented by tiie motion itself.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2587, 2653, 2986-2998, 3056, 3067-3071; Dec. Dig. § 1134.]
    6. Criminal Law (§ 1038) — Trial—Statement of District Attorney to Jury.
    In the absence of any request for a special charge, error canot be predicated on a statement of the district attorney to the jury, the court, in approving the bill of exceptions, stating that, when objection was made, the district attorney corrected the statement, and the court instructed the jury not to consider it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    7. Criminal Law (§ 598) — Trial—Withdrawing Announcement of Ready.
    Refusal to allow defendant, after the state had introduced its evidence, to withdraw his announcement of ready for trial, he merely stating he could prove by certain persons certain facts which would tend to impeach a witness for the state, and which would be admissible only for the purpose of impeachment, and showing no diligence to ascertain the facts before making the announcement, is not error.
    [Ed. ■ Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    8. Intoxicating Liquors (§ 239) — Pursuing Occupation in Prohibition Territory-Prosecution — Charge.
    The charge, on a prosecution for pursuing the occupation of selling intoxicating liquors in prohibition territory, does not authorize a conviction for making two sales; it instructing that the jury must believe beyond a reasonable doubt that defendant was pursuing the occupation and made two sales to the person named in the indictment, or they would acquit, and then defining occupation in an unobjectionable way.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    Ed. Miller was convicted, and appeals.
    Affirmed.
    Birmingham & Calvin, of Paris, for appellant. R. T. Lipscomb, Dist. Atty., of Bon-ham, and O. E. Lane, Asst. Atty. Gen., for the State.
    
      
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      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of pursuing the business and occupation of selling intoxicating liquors in prohibition territory, from which judgment he prosecutes this appeal.

In introducing the orders of the commissioners’ court, the state introduced the one ordering the election which on its face shows that the clerk of the court was ordered to “post or cause to be posted at least 5 notices of this order at different places within Lamar county for at least 12 days prior to the said 26th of June, 1909 (the day of election), as the law directs.” Appellant objected to the order on the ground that “it does not give such notice as the law demands.” This order complies strictly with articles 5717 and 5718 of the Revised Statutes. The objection to the other orders are equally untenable, as the proceedings were in strict compliance with the provisions of chapter 1, tit. 88, of the Revised Statutes. In addition to this, the objection would come too late, as article 5728 provides for a contest of the election within a given period of time, and, if not contested, it shall be conclusively presumed that said election is valid and binding upon all courts.

A. Ware testified that he purchased whisky twice from appellant, giving the date, time, and place. He also testified: “There were several nights I was at the depot after the second transaction, and he generally would ask me if I wanted any more whisky. I could not positively say how many times he asked me, several times though. In fact, every time I saw him he solicited me to make a purchase.” Appellant objected to this latter testimony, but, as appellant was being prosecuted for pursuing the occupation, it was clearly admissible.

The state introduced Mr. J. E. Vaughn, agent of the Wells Fargo Express Company, at Paris, and he testified: “The book shown me is the record of the depot delivery of whisky from March 22, 1912, to April 1,1913, of the Wells Fargo Express Company.” That the book was correctly kept, and that appellant had been to the express office and ha>d business transactions with him as agent of the express company, and he saw him sign the express record. That the books show shipments and delivery of whisky and alcohol to appellant on January 8, 1913, January 11, 1913, January 16, 1913, January 17, 1913, January 25, 1913, January 31, 1913, and other dates up to the time of the return of the indictment in this cause. As appellant was being prosecuted for pursuing the business of selling intoxicating liquor, the court ruled correctly in admitting this testimony.

There are four other bills of excep tion, one of them relates to the refusal of the court to peremptorily instruct a verdict of not guilty on appellant’s motion. As the evidence above recited would sustain a conviction, the court did not err in overruling the motion. Another relates to the action of the court in overruling his motion for a new trial. This was unnecessary and presents no question for review further than would be presented by the motion itself. In the third bill of exception it is stated that “the district attorney stated to the jury that on February 4, 1913, the appellant had shipped to him 48 pints of whisky.” The court, in approving the bill, states that, when objection was made, the district attorney corrected the statement, and the court instructed the jury not to consider the statement. In the absence of any request for a special charge in regard to the matter, this action of the court presents no error.

The only other bill relates to the action of the court in refusing to allow appellant to withdraw his announcement after the state had introduced its evidence. Appellant states he could prove by Tom Smith and Mr. Gossett certain facts which would have a tendency to impeach state’s witness Ware. Appellant shows no diligence to ascertain the facts before announcing ready for trial, and, as the testimony would only be admissible for the purpose of the impeachment of the state’s witness, the bill presents no error.

The criticisms of the court’s charge are without merit. He did not authorize a conviction for making two sales, but instructed the jury that they must believe beyond a reasonable doubt that appellant was pursuing the occupation and made two sales to the person named in the indictment, or they would acquit, and then defined occupation in an unobjectionable way.

Affirmed.  