
    BOYD v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.
    On Motion for Rehearing, Jan. 14, 1914.)
    1. Intoxicating Liquors (§ 131) — Violation on Local Option Law — Nature of Offense.
    A violation of the local option law adopted at an election held prior to the amendment of the law making it a felony to sell liquors in prohibition territory is a misdemeanor.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 140, 161; Dec. Dig. § 131.]
    2. Criminal Law (§ 1038) — Questions Reviewable — Instructions.
    On appeal in a misdemeanor case, complaints of the charge in the motion for new trial cannot be considered where no exception to the charge was reserved, nor special charge requested.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    3. Criminal Law (§ 1054) — Appeal—Exceptions — Rulings on Evidence.
    On appeal in a misdemeanor case, the admission of testimony cannot be considered where no exception was reserved to the ruling.
    [Ed._ Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2662-2664; Dec. Dig. § 1054.]
    4. Intoxicating Liquors (§ 236) — 'Violation of Local Option Law — Evidence—Sufficiency.
    The testimony of a state’s witness on a trial for violating the local option law, that he bought whisky from accused, sustains a conviction, though his further examination weakened his statement.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. §. 236.]
    On Motion for Rehearing.
    5. Criminal Law (§ 1112) — Record on Appeal — Ex Parte Affidavits.
    A statement of facts, agreed to by the county attorney and accused’s counsel, and approved by the county judge, cannot be impeached by ex parte affidavits; but the court on appeal must take the record as made on the trial of ^he ease, and certified to it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2896; Dec. Dig. § 1112.]
    Appeal from Upshur County Court; W. H. McClelland, Judge.
    A. B. Boyd was convicted of violating the-local option law, and he appeals.
    Affirmed.
    Warren & Briggs, of Gilmer, for appellants 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 convicted of violating the local option law, and his punishment assessed at a fine of $25, and 20-days’ imprisonment in the county jail.

In Upshur county it is a misdemeanor to sell intoxicating liquors, the election having been held prior to the time that the law was amended making it a felony to sell intoxicating liquors in prohibition territory; and the record must be passed on as applicable to misdemeanors.

No special charge was requested, and no exception to the charge as given was reserved; consequently tlie complaints of tlie charge in the motion for a new trial cannot be considered.

No exceptions were reserved to the introduction of testimony; therefore the only ground in the motion we can take into consideration is the one complaining of the sufficiency of the testimony.

The witness Lennie Gibbs testified, “Yes, I bought a pint of whisky from Mr. Boyd;” and, while his further examination might tend to weaken this statement, yet that was a question for the jury, and not for us.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for a rehearing in this case, and undertakes to impeach the record, in that he attaches to his motion the affidavit of Lennie Gibbs, stating that he did not swear on the trial that he purchased a bottle of whisky from appellant. The statement of facts recites that Lennie Gibbs testified as follows: “Yes, I bought a pint of whisky from Mr. Boyd [appellant].” This statement of facts is agreed to by the county attorney and appellant’s counsel, and approved by the county judge. This record cannot be impeached by ex parte affidavits. If it is not a true recitation of the testimony heard on the trial, appellant’s counsel should not have agreed to and signed it. If we permitted the record to be impeached by ex parte affidavits, there would be no end to the trial of a case. We must take the record as made on the trial of the ease and certified to us.

The motion for rehearing is overruled.  