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, and Myers v. State, recently decided but not yet 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 exceptions 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 *Page 428 ground a new trial was refused under such circumstances. Proof must be made that the local option law has been adopted, otherwise a conviction can not 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 Howard Terrell, who was present. Terrell files an affidavit, attached to the motion, that such evidence is not true, and that the 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.
Reversed and remanded.