
    BASHARA v. STATE.
    (No. 5125.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.
    On Motion for Rehearing, Nov. 20, 1918.)
    1. Intoxicating Liquors <&wkey;205(l) — Indictment— Sufficiency — Local Option Law.
    An indictment alleging the unlawful sale of intoxicating liquors “in violation of said law aforesaid,” held to charge a violation of the local option law as against an exception that it only referred to the local option election law therein mentioned.
    2. Indictment and Information &wkey;>60 — Allegation of-Penalty.
    It is wholly unnecessary that an indictment allege the penalty for the crime.
    3. Indictment and Information &wkey;>86(2)— Venue — “Then and There.”
    Where an indictment shows it was brought by the grand jury of M. county, that M. county had adopted the local option liquor law, and alleges defendant did “then and there” violate said law, the words “then and there” held to refer to M. county.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Then and There.]
    4. Criminal Law &wkey;>1144(6) — Appeal and Error — Venue—Presumption.
    In view of Code Grim. Proe. 1911, 'art. 938, it must be presumed! that the venue was proven unless that was made an issue in the trial.
    5. Criminal Law &wkey;304(6) — Geographical Locations — Judicial Notice.
    Where proof shows the violation of the local option liquor law in Waco, the court will take judicial knowledge that Waco is in McLel-lan county.
    6. Intoxicating Liquors <&wkey;236(ll) — Sale to Sick Person — Prescription—Evidence —Sufficiency.
    Proof held to show clearly that defendant made an illegal sale of what he knew was whis-ky in violation of the liquor law, under which a legal sale to a person claimed to be sick can only be made on a written prescription of a doctor, in view of Pen. Code 1911, art. 598.
    7. Criminal Law &wkey;>304(20) — Judicial Notice — Whisky.
    The court will take judicial notice that whis-ky is intoxicating.
    On Motion for Rehearing.
    8. Intoxicating Liquors i&wkey;205(2) — Indictment — Local Option Election — “Declaring Result of Said Vote.”
    In an indictment for violation of the local option law, the use of the wordls “declaring the result of the election” instead of the words “declaring the result of said vote,” as used in Rev. St. art. 5721, is immaterial.
    9. Intoxicating Liquors <&wkey;36(5) — Local Option Election — Declaration of Vote— Conclusiveness.
    Under Rev. St. art. 5728, the declaration of the commissioners’ court upon the adoption of county local option is conclusive unless contested within 30 days.
    10. Intoxicating Liquors <§^148 — Local Option Law — Violation — Intent to Evade.
    In a prosecution for violation of the local option liquor law, the state need not prove the sale -was made with the purpose of evading the law.
    Appeal from 'District Court, McLennan County; R. I. Munroe, Judge.
    Tom Bashara was convicted of violating the prohibition law, and he appeals.
    Affirmed.
    James E. Veager, of Waco, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of violating the prohibition law in said county.

He had no attorney when tried, but procured one as soon as he was convicted. His able attorney has filed both an original and a supplemental brief, which have had due consideration.

No motion was made to quash the indictment, but a motion in arrest of judgment was filed claiming the indictment was invalid. In view of his motion we will copy the indictment. It is:

“In the name and by the authority of the state of Texas: The grand! jury of the county of Mc-Lennan and state of Texas, duly .selected, organized, and impaneled by the judge of the 54th judicial district of Texas, holding session of the district court in and for said county, upon their oaths in said court present that heretofore, on the 20th day of October, 1917, in said McLennan county, an election was held in accordance with the laws of said state, and under the authority of an order of the commissioners’ court of said county, theretofore duly made and published as required by law, to determine whether or not the sale of intoxicating liquors should be prohibited! in said county, and the qualified voters of said election did then and there determine that the sale of intoxicating liquors should be prohibited in said McLennan county, and thereupon, to wit, on November 3, 1917, the commissioners’ court of said county did pass an order declaring the result of said election, and prohibiting the sale of intoxicating liquors in said McLennan county, which order was duly entered of record on the minutes of the said commissioners’ court, and which order was immediately thereafter duly published for four successive weeks in the Waco Morning News, a newspaper then and! there published daily in said McLennan county, and being a newspaper selected in a manner as required by law by the then county judge of said county for the purpose of said publication, which selection and publication as aforesaid were duly certified to by the said county judge, and his certificate thereof duly entered on the minutes of said commissioners’ court as required by law; and that thereafter, to wit, on or about the 30th day of December, 1917, and before the presentment hereof, one Tom Bashara did then and there unlawfully sell intoxicating liquor to Bob Gilbert in violation of said law aforesaid, which was then and there in full force and effect in said county, against the peace and dignity of the state.”

His motion in arrest as to the claimed insufficiency of said indictment is on these grounds: (1) That it charges no offense under the law, in that it alleges that he sold the intoxicating liquor to Gilbert “in violation of said law aforesaid,” when, as he claims, the only law referred to was in regard to holding elections to determine whether or not the sale of intoxicating liquor should be prohibited in said county, and no mention of any law fixing a penalty for the sale of intoxicating liquors is mentioned in the indictment. (2) That the indictment failed to allege the selection of a newspaper publishing the order of the commissioners’ court, and that the publication thereof was certified to by the judge of said county. (3) That it fails to fix the jurisdiction and venue, in that it does not allege that the offense was committed in said county.

At most, appellant’s objections are hypercritical, and we think the indictment itself meets each of them. It is reasonably certain, even if that was necessary, that the law he is alleged to have violated was none other than the law prohibiting the sale of intoxicating liquors. It was wholly unnecessary for the indictment to allege what the penalty for his offense was. This is never done in an indictment. It plainly alleges the newspaper in which the commissioners’ court order was published, and that the publication thereof was certified by the county judge of said county. It alleges that the offense was committed in McLennan county. The “then and there” in the latter part clearly referred to McLennan county as the place in which the sale was made. Branch’s Ann. P. C. § 502.

In his motion for a new trial for the first time he claimed that the testimony failed to prove the sale was made in said county. He has no bill of exceptions on the subject. The statute (article 938, C. C. P.) requires that this court shall presume the venue was proven in the court below, unless that was made an issue in the trial below, and it affirmatively appears to the contrary by a bill of exceptions properly signed and allowed by the court below. The decisions of this court follow said statute. See some of them cited in 1 Branch’s Ann. P. C. § 452. Besides, the proof shows that the sale was made in Waco, and this court judicially knows that Waco is in McLennan county. 1 Branch’s Ann. P. C. § 263.

The uncontradicted testimony shows that the said purchaser claimed to be sick, and told appellant he wanted some whisky, and asked if he knew where he could get some. Appellant told him he had some in his room, and he went with him to his room, and they both took a drink out of a bottle. The purchaser than asked appellant what he would let him have the balance of the whisky in the bottle for. Appellant told him that the bottle originally cost him $1.50, but that he would let him have it for $1, and that he, for that price, took the bottle. He did not then pay for it, but that appellant later dunned him for the price. That he knew it was whisky. The proof clearly shows the illegal sale of the liquor as alleged. Appellant cites and relies upon Waldstien v. State, 29 Tex. App. 82, 14 S. W. 394. That case is not in point. Appellant was prosecuted therein for making a sale of liquor to a minor without a written order, under a different statute altogether, and shows a very peculiar state of facts. That decision, however, was not adhered to, but, in effect, overruled, under the later decisions of this court. Yakel v. State, 30 Tex. App. 391, 17 S. W. 943, 20 S. W. 205.

Under the prohibition law, a sale of whisky to a person claimed to be sick can legally be sold only on the written prescription of a doctor. Pen,. Code, art. 598.

The proof showed that the liquor appellant sold was whisky. No other proof was necessary to show it was intoxicating. This court has uniformly held that, when the proof shows the liquor sold was whisky, that is sufficient to show that it was an intoxicant. 1 Branch’s Ann. P. C. p. 700.

Appellant alleged other matters in his motion for a new trial, which he briefs, but he has no bills of exception, which are proper to raise the questions. Appellant’s conviction was in every way legal and proper. No reversible error is shown.

The judgment is affirmed.

On Motion for Rehearing

Appellant's attorney in his motion for rehearing says that he did not contend in his motion in arrest of judgment, that the' penalty for violation of said statute prohibiting the sale of intoxicating liquors in prohibition territory should have been alleged in the indictment, and that he does not like for such contention on his part, as in effect so stated in the original opinion, to be made history. The court in stating the first ground in, his motion in arrest of judgment in the original opinion may have misunderstood him on this point and incorrectly stated his position. In deference, therefore, to what he says, any expression in the original opinion which indicates that he may have made such a contention is withdrawn. Of course, this court does not desire to put him in a false attitude and had no intention of doing so.

In his motion in arrest of judgment for the claimed insufficiency of the indictment he did not claim that the order of the commissioners’ court declaring tire result of “said election” instead of declaring the result of “said vote,” that the prohibition law was not thereby put in force. He did make such a claim in his brief. We did not notice it in the opinion because we thought it was too hypercritical to' require mention. lie renews that contention in his motion for rehearing, and says: “We concede that this contention, is drawing a fine point, nevertheless the issue is drawn, and it should not be passed over lightly.” • He cites article 5721, Rev. Civil Statutes, which directs that tire commissioners’ court at the time specified shall open the polls and count the votes, and, if the majority are for prohibition, that the court shall immediately make an order declaring the “result of said vote,” and absolutely prohibiting the sale of intoxicating liquors, etc. Neither in fact nor in law under this statute is there any distinction or difference between declaring the result of said “election” and declaring the result of said “vote.” Declaring the result of said election could mean nothing else than declaring the result “of said vote.” 'Mr. Branch in his 1 Branch’s Ann. P. C. p. 689, in prescribing a form of indictment under the prohibition statute, instead of using the words “declaring the result of said, vote” uses the words “declaring the result of said election.” The use of the words “declaring the result of the election,” instead of the words “declaring the result of the vote,” was wholly immaterial. Besides, if there could have been anything in this point, the statute requires that unless the election should be contested by suit brought in, the district court within 30 days after the election, the declaration of the result by the commissioners’ court is conclusive on all courts. Rev. St. art. 5728.

Neither is there anything in appellant’s contention that it was necessary for the state to prove that in mailing the alleged sale of intoxicating liquors the appellant must be shown to have done so for the purpose of evading the law. The indictment alleged, and the state proved, a direct and unlawful sale, which was all that was necessary to either allege or prove on this point.

The motion is overruled. 
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