
    FERGUSON v. STATE.
    (Court of Criminal Appeals of Texas.
    April 17, 1912.
    On Motion for Rehearing, May 8, 1912.)
    1. Bail (§ 64) — In Criminal Prosecutions —Recognizance—Requisites.
    A recognizance which does not state the punishment assessed, as required by Code Cr. Proc. 1911, art. 919, is insufficient.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 278; Dec. Dig. § 64.]
    On Motion for Rehearing.
    2. Criminal Law (§ 1032) — Appeal—Reservation of Grounds of Review.
    An objection to an indictment charging a violation of the local option law, on the ground that it does not allege the date of the.adoption of prohibition, cannot be raised for the first time on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2627, 2628, 2642; Dec. Dig. § 1032.]
    3. Intoxicating Liquors (§ 236) — Violation of Local Option Law — Evidence.
    To sustain a conviction for a violation of the local option law, it is necessary to prove its adoption.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    4. Criminal Law (§ 942) — New Trial — Newly Discovered Evidence.
    Where accused, charged with violating the local option law, did not know that prosecutor would testify that he purchased whisky from accused, and secured a bottle from a third person, who was present, and when prosecutor so testified accused could not obtain the attendance of the third person, who, if present, would testify that the prosecutor never obtained a bottle from him, and that the third person was never present when accused sold any whisky, accused was entitled to a new trial on the ground of newly discovered evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. § 942.]
    Appeal from Madison County Court; Tom D. Clark, Judge.
    Rufus Ferguson was convicted of crime, and he appeals.
    Reversed, and remanded on rehearing.
    J. M. Brownlee and Carl T. Harper, both of Madisonville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dee. Big. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

The Assistant Attorney General has moved to dismiss the appeal, because the recognizance is not in compliance with article 919 of the Code of Criminal Procedure. The recognizance does not state the punishment assessed, and the motion is sustained. May v. State, 40 Tex. Cr. R. 196, 49 S. W. 402; Johnson v. State, 49 S. W. 594; Martinez v. State, 48 Tex. Cr. R. 532, 89 S. W. 642.

Appeal dismissed.

On Motion for Rehearing.

On a former day of this term, this case was dismissed on account of a defective recognizance. A new recognizance, conditioned as required by law, has been filed.

Appellant in this court, for the first time, files a plea to the insufficiency of the indictment, because it. does not allege the date when prohibition was adopted in Madison county. The plea comes too late. Such plea must be presented before trial, and will not be considered after the verdict is rendered. Hamilton v. State, 145 S. W. 348, and Meyer v. State, 145 S. W. 919, recently decided, but not yet officially reported.

Appellant presented a special charge, requesting the court to instruct the jury to return a verdict of not guilty, as the state had introduced no evidence that local option had been adopted in Madison county. He reserved a bill of exception to the action of the court in refusing said instruction, and the court, in approving the bill, certifies that no evidence was introduced. We can hardly see upon what ground a new trial was refused under such circumstances. Proof must be made that the local option law has been adopted; otherwise a conviction cannot be sustained.

A plea of newly discovered evidence was urged in the motion. The state’s witness had testified that he purchased whisky from appellant, and secured a bottle from xloward Terrell, who was present. Terrell files an affidavit, attached to the motion, that such evidence is not true, and that prosecuting witness never obtained a bottle from him; nor was he ever present when appellant sold any whisky. Under the circumstances, we think a new trial should have been granted on this ground, as appellant makes an affidavit that he never knew that such would be the testimony until the prosecuting witness testified, and he could not then obtain the attendance of the witness Terrell.

The judgment is reversed, and cause is remanded.  