
    HEAD v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1911.)
    1. Intoxicating Liquors (§ 132) — Statutes —Local Option Law — Construction.
    Act April 24, 1909 (Acts 31st Leg. [1st Ex. Sess.] c. 35), providing that, “if any person shall sell any intoxicating liquor in any district in which the sale of intoxicants shall hereafter be prohibited, he shall be punished by confinement in the penitentiary,” does not apply to counties which had adopted local option before the passage of the act.
    [Ed. Note. — Eor other cases, see -Intoxicating Liquors, Dec. Dig. § 132.]
    2. Intoxicating Liquors (§ 200) — Information — Sufficiency.
    -Under Code Cr. Proc. 1895, art. 466, providing that an information to be sufficient must be presented in a court having jurisdiction of the offense set forth, an information filed in county court, charging that accused sold intoxicating liquors on September 29, 1909, which was after Act April 24, 1909 (Acts 3lst Leg. [1st Ex. Sess.] c. 35), went into effect, and that the sale was made after an election had been held in the territory, was insufficient in failing to show that the county court had jurisdiction of the offense, for the county court has jurisdiction only of misdemeanors, and, if the election was held after act of April 24, 1909, went into-existence, the sale was a felony.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Dec. Dig. § 200.]
    Appeal from Dallas County Court at Law; W. E. Whitehurst, Judge.
    John Head was convicted of a violation of the local option law, and appeals.
    Reversed and dismissed.
    Pierson, O’Donnell & Pierson, 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
    
   HARPER, J.

Appellant was prosecuted under a complaint and information charging him with violating the local option law. The complaint and information allege the sále to-have been made on the 29th day of September, 1909, but in the complaint and information it is not alleged when prohibition was adopted in the territory described in the complaint and information; the allegation-being that said sale had been made “after an election had been held in said territory,” etc.

When the ease was called for trial, appellant filed the following plea to the jurisdiction: “Comes now the defendant, and shows to the court that the information herein is defective, in that it fails to meet one of the requirements of the Code of Criminal Procedure, in that it does not show that this court has jurisdiction of the offense attempted to be charged in the said indictment, in this, to wit: The court judicially knows that the Thirty-First Legislature in its regular session in 1909 passed a law making the sale of liquor in a local option territory a felony. The court further judicially knows that said law does not apply to counties nor to subdivisions thereof, unless a local option election in said county, or said subdivision was held subsequent to the passage of said law aforesaid. The court does not judicially know when the local option election alleged to have been held in this indictment was held, and does not judicially know that such election was held at all. That the court judicially knows that unless said election, if there was such an election, was held prior to the passage of the aforesaid law by the said Legislature, that this court has no jurisdiction, because there is no allegation in said information as to the time and date of the holding of such election. Wherefore, the defendant prays the affidavit and information herein be quashed and set aside, and that the defendant go hence without day.”

The court overruled the plea. Appellant wa"s convicted, and prosecutes an appeal to this court, assigning as error the action of the court in overruling the plea. By article 402 of the Revised Penal Code the Legislature has provided: “If any person shall sell any intoxicating liquor in any county, justice precinct, city or town in which the sale of intoxicating liquor has been prohibited under the laws of this state, or if any person shall give away any intoxicating liquor in any such county, justice precinct, city or town, with the purpose of evading the provisions of said laws, he shall be punished by. fine of not less than twenty-five nor more than one hundred dollars, and by imprisonment in the county jail for not less than twenty nor more than sixty days. Or, if any person shall sell any intoxicating liquor in any county, justice precinct, school district, city or town, or subdivision of a county, in which the sale of intoxicating liquors shall hereafter be prohibited under the laws of this state, or if any person shall give away any intoxicating liquor in any such county, justice precinct, school district, city or town, or subdivision of a county, with the purpose of evading the provisions of said law, he shall be punished by confinement in the penitentiary not less than one nor more than three years.” As said by appellant in his plea, the sale of intoxicating liquors was made a felony by the Legislature in 1909, which law became effective July 24, 1909 (Act 31st Leg. [1st Ex. Sess.] c. 35). The sale in this case in the complaint and information is alleged to have been made September 29, 1909, or two months after the the statute making it a felony had become effective. Of course, under the above statute, and the decision of this court in Lewis v. State, 58 Tex. Cr. R. 351, 127 S. W. 808, it is only a felony to sell intoxicating liquors in the prohibited territory where the election has been held subsequent to July 24, 1909, and in all territory where the prohibition law had been adopted prior to July 24, 1909, the offense is only a misdemeanor. The question raised in this case is that the information having alleged the sale at a date subsequent to the adoption of the felony statute, and not alleging that the election had been held prior to July 24, 1909, inasmuch as the county court at law in Dallas county has jurisdiction only in misdemeanor eases, the information did not allege facts showing that said court had jurisdiction of said offense.

In the Code of Criminal Procedure it is provided, among other things (article 406): “An information is sufficient if it has the foil wing requisites: (1) It shall commence in the name and by the authority of the state of Texas; (2) that it shall appear to have been presented in a court having jurisdiction of the offense set forth.”

In the case of Pittman v. State, 14 Tex. App. 578, it is held by this court: “Among the several exceptions to the information and affidavit, there is one which in our opinion is well taken, and this reaches only to the information. There is no allegation in the information of the value of the hog charged to have been stolen. Whenever the value of a stolen article affects the penalty for the offense, such value must be alleged and proved. Sheppard v. State, 1 Tex. App. 522; Meyer v. State, 4 Tex. App. 121; Simpson v. State, 10 Tex. App. 681. In this case it depends upon the value of the property stolen whether the theft is a felony or a misdemeanor, and this question can only be determined and the punishment of the offender-regulated by allegation and proof of such value. Pen. Code, art. 748.” Under the statute under which appellant is prosecuted in this case, the date when the election is held fixes the penalty attached to the offense. If the election was held prior to July 24, 1909, the offense is punishable as a misr demeanor, and, if the election was held subsequent to that date, it is punishable as a felony, and we are of the opinion that, where the sale is alleged to have been made at a date subsequent to the passage of the felony statute, the county court has no jurisdiction of the offense, unless it is alleged and proven that the election was held prior to such date. . 2 Bishop, Crim. Proc. (3d Ed.) § 713. In every case when a sale is alleged subsequent to the enactment of the felony statute, if the election was held prior to the enactment of that law, the complaint and information must so allege, as the Criminal Code provides that the allegations in the information must state facts showing that it is presented in a court having jurisdiction.

The court erred in not sustaining the plea, and, as the information and complaint do not by their allegations state a case of which the county court at law would have jurisdiction, this case is reversed and dismissed.  