
    HAYNES v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 8, 1911.
    On Rehearing, Oct. 4, 1911.)
    1. Bail (§ 65) — Appeal—Recognizance.
    An appeal from a conviction of a misdemeanor cannot be sustained, where the recognizance does not state the amount of the punishment inflicted.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 278; Dec. Dig. § 65.]
    On Rehearing.
    2. Criminal Law (§ 1099) — Appeal—Statement op Facts — filing.
    A statement of facts, filed in the trial court more than 20 days after adjournment of the court cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    3. Intoxicating Liquors (§ 111) — Keeping House Where Liquors are Unlawfully Sold — Statutes—Repeal.
    Acts 30th Leg. c. 132, prohibiting the keeping of a house in which spirituous, vinous, and malt liquors are sold and kept for sale without a license, was not repealed by the vagrancy act of 1909 (Acts 31st Leg. c. 59).
    [Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. § 111.]
    4. Intoxicating Liquors (§ 111) — Statutes —Construction.
    Acts 30th Leg. c. 132, prohibiting the keeping of a house in which intoxicating liquors are sold and kept for sale without a license, is not in conflict with Acts 31st Leg. (1st Eix. Sess.) c. 15, prohibiting and making it a felony to pursue the occupation of unlawfully selling intoxicating liquors in prohibition territory, and neither act is in conflict with Acts 31st Leg. (1st Ex. Sess.) c. 35, making it a felony to unlawfully sell intoxicating liquors in prohibition territory.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Dec. Dig. § 111.]
    Appeal from Potter County Court; W. M. Jeter, Judge.
    Jim Haynes was convicted of unlawfully keeping a house where intoxicating liquors were sold and kept for sale without a license, and he appeals.
    Affirmed.
    H. H. Cooper, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

This is a misdemean- or case. The appellant was charged and convicted in the county court of Potter county with unlawfully keeping and knowingly permitting to be kept, etc., a house in said county in which spirituous, vinous, and malt liquors were sold and kept for sale without a license first having been obtained therefor, and his punishment fixed at a fine of $200 and 20 days in jail.

The Assistant Attorney General has made a motion to dismiss this appeal on the ground, among others, that the recognizance in this case does not state the amount of the punishment inflicted in the court below. The motion is well taken. See Merfett v. State, 135 S. W. 573, and authorities cited, this day decided.

The appeal is therefore dismissed.

On Rehearing.

By complaint and information filed in the county court appellant was charged with unlawfully keeping, and was concerned in keeping, and aiding, abetting, and assisting in keeping, and knowingly permitted to he kept, a disorderly house in Potter county, in which spirituous, vinous, and malt liquors were sold and kept for sale without a license first having been obtained therefor. He was tried and convicted, and his penalty assessed at a fine of $200 and 20 days’ imprisonment in the county jail. At a former day of the last term of the court this cause was dismissed because of an insufficient recognizance. The appellant afterwards perfected his appeal by entering into a proper recognizance and furnishing this court with proper evidence thereof. On appellant’s motion the case is therefore reinstated, and will be considered on its merits.

The term of the court at which appellant was tried adjourned on June 4, 1910. There is no statement of facts contained in the record. There is with the papers, however, what purports to be a statement of facts in the case, filed in the lower court on July 2, 1910, more than 20 days after the adjournment of court. It cannot be considered. Wagoner v. State, 140 S. W. 339, this day decided.

The appellant made a motion in the lower court to quash the complaint and information because the statute under which this prosecution was held (Acts 1907, p. 246) was repealed by the Vagrancy Act of 1909, p. 111. This question was fully considered by this court and held adversely to this contention in the case of Parshall v. State, 138 S. W. 759.

Another ground of the motion to quash is that it is in conflict with Acts 1909 (1st Ex. Sess.) p. 284, prohibiting and making it a felony to pursue the occupation of unlawfully selling intoxicating liquors in prohibition territory. There is nothing in this contention, as the offense prescribed by the act of 1909 is entirely different from the offense charged in this case. Neither is it in conflict with Acts 1909 (1st Ex. Sess.) p. 356* making it a felony to unlawfully sell intoxicating liquors in prohibition territory.

The complaint, information, charge of the court, verdict, and judgment being regular, none of the other questions raised by appellant in his bills of exception and motion for a new trial can be considered, in the absence of a statement of facts.

The judgment will therefore be in all things affirmed.  