
    ENRIQUEZ v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 2, 1910.
    Rehearing Denied Dec. 21, 1910.)
    1. Intoxicating Liquors (§ 205) — Prosecution — Allegations of Indictment — Date of Election.
    An indictment charging a violation of the local option law need not allege the date upon which the local option election was held in the county.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. § 205.]
    2. Intoxicating Liquors (§ 40) — Statutes— Repeal — Punishment.
    While the direct provisions of Const, art. 16, § 20, require the Legislature to enact a law whereby the voters of any county, etc., may determine from time to time whether the sale of intoxicants shall be prohibited, the question of whether the local option laws enacted shall be put in force in a particular county is left for the decision of the voters therein, so that the holding of a local option election in December, 1909, in which local option carried, after the passage of the local option law making its violation a felony, operated to repeal the misdemeanor punishment imposed by the former local option statute, and to put in force the felony punishment as to offenses committed after such election was held.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. § 40.]
    Appeal from District Court, Uvalde County; R. H. Burney, Judge.
    Porfirio Enriquez was convicted of selling intoxicants in violation of the local option law, and he appeals.
    Affirmed.
    6. B. Fenley and Claude Lawrence, for appellant. John A. Mobley, 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
    
   DAVIDSON, P. J.

Appellant was convicted of selling whisky in violation of the statute under an election held since the passage of the felony statute. Laws 1909, e. 35.

1. An attack is made upon the indictment, because it does not allege the date upon which the election was held putting local option into effect. Under the decisions of this court, this objection is not well taken. See Wade v. State, 52 Tex. Cr. R. 610, 108 S. W. 376.

2. It is suggested in motion for new trial that the court misdirected the jury as to the law and the penalty for its violation, in that the court instructed the jury that in case they should convict they would punish by imprisonment in the penitentiary, whereas in truth and in fact the offense with which the defendant stands charged is not a felony, and not punishable by imprisonment in the penitentiary. The facts show that, if a sale occurred it was about March, 1910. It further shows that an election was held in December, 1909, since the passage of the felony statute by the Legislature. It is further shown that local option law had been in effect prior to that time by virtue of an election held in 1906. The contention of appellant seems to be this: That the law was in force by virtue of thq election of 1906, and that the election held in December, 1909, was but the continuance of the law in force, and, therefore, it was not a felony, but a misdemeanor. We have heretofore held, in Hood v. State, 52 Tex. Cr. R. 524, 107 S. W. 848, that where local option election was held in 1901, and again in the same territory in 1904, both resulting in favor of prohibition, the prosecution could be predicated upon either election, and there was no error in admitting in evidence the orders of the commissioners’ court showing the adoption of the local option law in 1901. Under the law as it then existed the punishment was the same under both elections, and, the law having been continued in operation and the punishment the same, it would make no difference under which election the prosecution occurred.

The question there decided is not the question here presented. If the.punishment was the same under the late act of the Legislature as it was before, there might be no repeal. The territory being the same, the punishment being the same, subsequent elections holding the law in operation would make no difference in the status of the law and the parties. As the law is now the punishment is different from that under which the election was held in 1906, as it relates to this ease. The Legislature is authorized and required by the Constitution to pass local option statutes whereby the people may hold such elections and put the law into operation. The Legislature, therefore, is empowered by the terms of the Constitution to pass local option laws and prescribe therefor punishments for its violation. Whether the law should go into effect or not, so as to enforce these punishments, is relegated to the people of the particular territory where it is sought to be put into operation. With that the Legislature has no concern. The Legislature did pass the late act making the punishment a felony, and we have held, in the case of Lewis v. State, 127 S. W. 808, that these punishments could not be made operative in the territory where local option was in existence at the time of the passage of the statute;; that the people must again vote upon the law, if they desired to make violations of the law a felony; that the Legislature could not do so.

This was the object and purpose of section 20, art. 16, of our state Constitution. Of course, this amended statute could not go into operation, as before stated, until the people had voted upon it. At the time they voted in this particular case the new statute had been enacted. The election in December, 1909, operated as a repeal of the former punishment, and by putting the law into operation the people adopted this amended statute, with its punishment. So far as the new punishment is concerned the amended or substituted law became operative in the territory after the election was held subsequent to the passage of that statute as to all offenses thereafter committed. The people had so ordered by their vote. This they had the legal right to do. So far as that particular election is concerned, the amended statute, prescribing the felony punishment, was and is the law.

Finding no reversible error in the record, the judgment is affirmed.  