
    MARCH 22, 1939
    N. B. Allen v. The State.
    No. 20273.
    Delivered March 22, 1939.
    
      The opinion states the case.
    
      Aubrey Davee, of Brady, for appellant.
    
      Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   Krueger, Judge.

The offense is unlawful possession of intoxicating liquor in dry area for purpose of sale. The punishment assessed is confinement in the county jail for a term of thirty days and a fine of $100.00.

We need consider only the sufficiency of the evidence to support the conviction. The facts as disclosed by the record fail to show that McCulloch County is dry area as charged in the information. Consequently the conviction cannot stand.

The State has undertaken to supplement the statement of facts by two ex parte affidavits to the effect that appellant’s attorney agreed that McCulloch County was dry area. These affidavits are not part of the record; they were not filed in the court below or in this court, but if they had been, the same could not be considered by us. Bigham v. State, 36 Tex. Crim. Rep., 453; 37 S. W., 753; McConnell v. State, 212 S. W., 498.

For the error discussed, the judgment of the trial court is reversed and the cause remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.  