Appellant was convicted of violating the local option law, and has punishment assessed at a fine of $25 and twenty days confinement in the county jail; hence this appeal.
Appellant filed a motion in arrest of judgment which involves the legality of the indictment. The indictment alleges, among other things, that the sale was made after the commissioners court had made an order authorizing the election, etc., and prohibiting the sale of intoxicating liquors, "and thereupon the commissioners court of said county did pass and publish an order declaring the result of said election and prohibiting the sale of intoxicating liquors in said county"; and thereafter appellant did unlawfully sell to one Harvey Bean intoxicating liquors, etc. The specific objection is that the law requires the county judge to make publication of the result of such election in a newspaper selected by him; or shall cause the same to be published by posting copies of said order in three public places. The fact of publication in either mode shall be entered by the county judge on the minutes of the commissioners court, and the entry thus made or copy thereof, certified under the hand and seal of the clerk of the county court shall be held sufficient prima facie evidence of the fact of such publication. See article 3391, Revised Civil Statutes. This same question was also raised by an objection to the testimony, which showed the publication by the county judge of the order as required by law. This testimony was objected to because not in accordance with the allegation in the indictment, that "the commissioners court of said county did pass and publish an order declaring the result of said election," etc. We are not aware that this exact question has heretofore been raised. In Key v. State, 37 Tex.Crim. Rep., the information alleged that the order had been published as required by law. The question was not in Stewart v. State, 35 Tex.Crim. Rep., as the information was held defective on other grounds. In Drechsel v. State, 35 Tex.Crim. Rep., the court, among other things, says that under article 3234, while it is necessary that the result of this election be published for four successive weeks in some newspaper published in the county, wherein such election has been held; and in the absence of such newspaper, the result shall be published by posting copies of such order at three places within the prescribed limits for four successive weeks, it is not necessary that these matters enter into or form a part of the judgment of the court declaring the result of such election. The law makes it incumbent upon the county judge to attend to these matters. It is his duty, under the directions of the statute, and not by an order of the commissioners court. In that case the objection urged was because it did not appear that the commissioners court ordered the publication of the result of such election *Page 284 in some newspaper or by posting the notice. We held that this was not necessary. It was further held in that case, that it was not necessary that the county judge make the entry on the minutes of the court contemporaneous with his action, but that this could be subsequently done. To the same effect was Crockett v. State, 49 S.W. Rep., 392. In Ludwig v. State, 40 Tex.Crim. Rep., it was held that a certificate general in terms that publication had been made as the law requires, was not sufficient, showing some degree of particularity is required in this entry by the judge and certificate by the clerk. The certificate by the clerk is made prima facie evidence of the fact that the publication was made as ordered by the county judge. We do not believe that the indictment here presented was sufficient. It averred a publication of the result by the commissioners court and not by the county judge. This is not a general allegation that said result was published as required by law, but is a special allegation that the publication was made by the commissioners court. The commissioners court is not the county judge and it may not include the county judge, as the commissioners may hold a session of court without the county judge participating therein. We accordingly hold that this indictment is not sufficient, and that the proof offered, which showed a particular publication of the result by the county judge, was not authorized under the indictment.
It is not necessary to discuss other questions raised by appellant. We would observe, however, that in our opinion it would make no difference for what appellant may have wanted to use the dollar he received for the whisky, to purchase a dinner or anything else, would make no difference in regard to a sale of the whisky. If the dollar was turned over to appellant for whisky, although he said he wanted the dollar to get his dinner with, this would not constitute it a gift. It occurs to us that the court would not be required to charge a gift under this character of evidence. For the defect in the indictment, the judgment is reversed and the prosecution ordered dismissed.
Reversed and dismissed.