The judgment in this case was affirmed at a former day of this term. A motion for rehearing has been filed, calling our attention to the fact that the evidence does not show with sufficient certainty that the offense was shown to have occurred subsequent to the levy by the County Commissioners Court of occupation taxes for the year 1896. Said County Commissioners Court levied a tax upon occupations for the year 1896 on the 10th day of February, 1896. The evidence shows that appellant sold whisky without license several times during the year 1896. Further than there is no identification of any sale made by him. Whether it occurred prior to the 10th day of February, 1896, or subsequent, is not shown. Nor was any evidence introduced to show that for the year 1895 said Commissioners Court had levied occupation taxes. These several sales referred to by the witness may, and could, have occurred prior to the 10th of February, the time of the levy of said occupation taxes. If so, under this record, there could have been no violation of the law. The indictment alleges that the occupation taxes had been, levied, thus constituting it an element in the offense as to the amount of punishment. We are not authorized to indulge the presumption against the defendant that the sales occurred subsequent to February, 1896. The proof could have been made by the witnesses who testified on the trial. It occurs to us that this is fatal to the conviction. See Petteway v. State, 36 Tex.Crim. Rep.; Zollicoffer v. State (Texas Crim. App.), 43 S.W. Rep., 992. The motion for rehearing is granted, and the judgment is reversed and the cause remanded.
Motion granted. Reversed and remanded. *Page 70