
    BUCKNER v. STATE.
    (No. 5034.)
    (Court of Criminal Appeals of Texas.
    June 12, 1918.)
    Intoxicating Liquors ⅞=>132 — Local Option Territory— Statutes.
    A prosecution for the sale of intoxicating liquor at retail without a license in local option territory may be maintained under Pen. Code 1911, art. 597, providing a penalty for such sales, but not under article 612, as amended by Acts 35th Leg. (Fourth Called Sess.) c. 6, § 1, making the offense of selling liquor without a license a felony; such provision not applying to a local option territory.
    Appeal from District Court, Lamar County; Ben I-I. Denton, Judge.
    Dixie Buckner was convicted of selling intoxicating liquor without a license, and she appeals.
    Reversed and remanded.
    Baughn & Johnson, of Paris, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of a felony, and her punishment assessed at two years’ confinement in the penitentiary.

The indictment charges, in substance, that appellant, not being a licensed retail liquor dealer, sold two quarts of beer in Lamar county. The prosecution is under chapter 6 of the Acts of the Thirty-Fifth Legislature, Fourth Called Session. Chapter 6 amends article 612, P. C. That article prior to this amendment denounced the sale of intoxicating malt liquors in quantities of. less than a gallon without procuring a liquor dealer’s license, or a retail malt dealer’s license, as a misdemeanor. The only effect of chapter 6 is to change the article so as to make the penalty a felony. Article 612, P. C., is a part of the Acts of the Thirty-First Legislature, Regular Session, c. 17, p. 293. The purpose of the act was to regulate the sale and disposition of spirituous, vinous, and malt liquors in places where same was sold. Article 612, P. C., corresponds with section 5 of the act. Section 27 of the act is as follows: ,

“This act, or any of the provisions thereof, shall not be construed to he in conflict with any local option law now or hereafter to be in force in this state, and no license to any retail liquor or retail malt dealer shall be issued or shall be effective at any place where local option law is in force and operation.”

It is admitted in the statement of facts in this case that in Lamar county, ■ where the offense is charged to have been committed, the sale of intoxicating liquors was prohibited under the local option statute. The view that article 612, P. C., is operative in counties or districts of the state where the sale of intoxicating liquors as a beverage is prohibited is a mistaken one. There is a statute which regulates and requires a license in such territory for liquors which are permitted by law to be sold, such as for medical purposes. See Watson v. State, 42 Tex. Cr. R. 14, 57 S. W. 101; Williamson v. State, 41 Tex. Cr. R. 466, 55 S. W. 568. The only purpose of the statute in question was to amend the license law regulating the sale of intoxicating liquors in districts where it is not prohibited in such way that the penalty for a violation of section 5 of said act of the 31st Legislature would become a felony instead of a misdemeanor, The sale, having taken place in a district or county in which the sale was prohibited under the local op-tton la\y, and not being a sale for any of tlie permitted purposes in such territory, comes within the purview of article 597, P. C., which provides a penalty for the sale of such liquors in prohibited territory, and the prosecution should be under that statute, and not under chapter 6, supra.

The judgment of the lower court is reversed, and the cause remanded. 
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