
    MEYER v. STATE.
    (Court of Criminal Appeals of Texas.
    March 20, 1912.
    Rehearing Denied April 10, 1912.)
    Intoxicating Liquoks (§ 205) — Local Option Law — Violation — Indictment — Defect of Fokm.
    Though an information for violating the local option law is required, by Code Cr. Proe. 1911, art. 478, subd. 2, to allege the date of the local option election by which the law was put in force, such allegation being no part of the offense, failure of an information to include it did not render it fatally defective, under article 476, providing that formal defects in indictments shall be disregarded, which is made applicable to informations by article 480.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. § 205.]
    Davidson, P. J., dissenting.
    Appeal from Smith County Court; Jesse F. Odom, Judge.
    Mike Meyer was convicted of violating the local option law, and he appeals.
    Affirmed.
    N. A. Gentry and Fitzgerald, Butler & Bulloch, all of Tyler, for appellant. O. E. .Lane, Asst. Atty. Gen., for the State.
    
      
       For ottier oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted in the county court of Smith county, under an information and complaint charging him with violating the local option law, alleging a single sale of intoxicating liquor; his punishment being assessed at a fine of ?25 and imprisonment in the county jail for 20 days.

Appellant, in his brief filed in this court, says: “In presenting this case to the court, we shall, without waiving the other matters raised in the motion for new trial, present what we think is fundamental error committed in the county court in the trial of this cause, in this: The complaint and information charge that on or about the 16th day of April, 1911, in Smith county, Texas, Mike Meyer did then and there unlawfully sell to Conde King intoxicating liquors, and at the time of the sale intoxicating liquors had been prohibited under the laws of the state and in said county, and which laws were at said time in full force and effect, and that said sale was made after qualified voters of said county, at a legal election held for that purpose in accordance with the law, had determined that the sale of intoxicating liquors should be prohibited in said county, and the commissioners’ court of said county and state had declared the result and legally passed an order to that effect, which order had been published as required by law. The charge of the court was in effect that it was illegal to sell intoxicating liquors in Smith county, Texas, on the date it is alleged the sale was made. It will be noticed that there is no date alleged in the information or complaint when the said election was held prohibiting the sale of intoxicating liquors in Smith county, Texas, and the charge of the court instructed the jury that it was illegal to sell whisky in Smith county, Texas, on the date alleged in the information that the sale was made, which was April 16, 1911.”

It is thus seen there was no motion made in the trial court to quash the information, or plea filed on account of 'the insufficiency of the allegations' in the information; but the question is sought to be raised in this court on grounds set forth in the motion for new trial. If the information was lacking in material allegations, or matters of substance, then the question could be raised at any time, because the information would not charge an offense against the laws of this state. It is admitted that the information charges an offense under our laws — that it is only lacking in allegation which would show whether the district court or county court was the forum in which the case should be tried. Our Code of Criminal Procedure requires informations and indictments to contain an allegation to that effect; but it has been held that this is but a defect in the “form” of indictment or information, and they may be amended in this respect under articles 586, 587, and 588 of the Code of Criminal Procedure 1895, and such a plea must be filed before announcement of ready for trial upon the merits of the ease, and comes too late when filed after a verdict has been rendered. This question is fully discussed in the case of Mathews v. State, 44 Tex. 376, by Chief Justice Roberts, copious extracts therefrom being copied by us in Hamilton v. State, 145 S. W. 348, decided at this term of the court. See, also, Hauck v. State, 1 Tex. App. 361; Long v. State, 1 Tex. App. 471; Walker v. State, 7 Tex. App. 52; Thomas v. State, 18 Tex. App. 220; Sharp v. State, 6 Tex. App. 652; Niland v. State, 19 Tex. App. 166; Osborne v. State, 23 Tex. App. 443, 5 S. W. 251; Bowen v. State, 28 Tex. App. 498, 13 S. W. 787; Murphey v. State, 29 Tex. App. 507, 16 S. W. 417; Young v. State, 55 Tex. Cr. R. 385, 116 S. W. 1158; Reys v. State, 45 Tex. Cr. R. 463, 76 S. W. 457, 77 S. W. 213; Fortenberry v. State, 72 S. W. 593; Williams v. State, 34 Tex. Cr. R. 100, 29 S. W. 472.

In the Walker Case, and other cases cited, it will be seen they were passing on the identical clause, “that it shall appear to have been presented in a court having jurisdiction of the offense,” and this is held to be a mere matter of form, and the information may be amended in this respect; and in a number of other cases cited, that if the objection is not made before announcement for trial, it comes too late, and will not be considered in arrest of judgment, or after verdict has been rendered. This case illustrates that the omitted allegation is but a matter of form, and not of substance. An information or indictment, not alleging the date of election, has always been held to charge an offense under our local option law. Coy v. State, 59 Tex. Cr. R. 379, 128 S. W. 414; Riggs v. State, 96 S. W. 25; Killman v. State, 53 Tex. Cr. R. 574, 112 S. W. 92; Enriquez v. State, 60 Tex. Cr. R. 580, 132 S. W. 782, and authorities collated in Branch’s Crim. Law, § 544. Consequently the date of election is no part of the offense, and in consequence not a matter of substance, but is now rendered necessary by reason of article 478, subd. 2 (new Code) as to the form of the information; but article 476 specifically provides: “An indictment shall not be held insufficient, nor shall the trial, judgment or other proceedings therein be affected by reason of any defect or imperfection of form in such indictment, which does not prejudice the substantial rights of the defendant.” And article 480 applies this article of the statute to informations.

There were no bills of exception reserved to the introduction of evidence or the charge of the court. The special charges requested were fully covered by the charge of the court, and, this being a prosecution for a misdemeanor, no error is presented that should cause a reversal of the ease.

The judgment is affirmed.

DAVIDSON, P. J.

(dissenting). The same question is involved in this case as in the case of Tom Hamilton v. State, 145 S. W. 348. For the reasons set forth in the dissenting opinion in the Hamilton Oase, I respectfully enter my dissent in this case.  