I respectfully enter my dissent from the conclusion reached by the majority. The agreed statement of facts shows that local option was and had been in effect for several months at the time the applicant was convicted in the County Court. That said conviction was for selling intoxicants to a minor; that it was done in applicant's saloon, and that the minor paid for the beer in the saloon at the time of the purchase. There is no question raised and no facts suggested that applicant gave to the minor any intoxicants, but the facts show, as agreed to, that it was a sale and not a gift. These facts being admitted and agreed to as being true, they are, therefore, binding upon this court and the parties to the record. It is upon the facts made by the record the case can only be tried and not what might have been the facts.
1. When local option goes into effect in a given territory it repeals, suspends or puts out of operation all other laws in regard to the selling of intoxicants in the territory where such local option law is put into effect. No other law in regard to sales except the local option law itself could legally exist in the given territory. This is and has been the rule in Texas since Robertson v. State, 5 Texas Crim. App., 155. The authorities on this question are unbroken. There has never been a variation from this doctrine, nor is there found in the books a dissenting opinion from the proposition.
2. Where a law has been repealed, under which a prosecution is *Page 382 had, at the time of the trial, the case must go off the docket. A conviction can not be had, for there is no law authorizing the prosecution, nor is there any statute which would justify the prosecution or the conviction. This is statutory. See White's Penal Code, article 16, section 28, for collated authorities. Article 16, supra, reads as follows: "The repeal of a law, where the repealing statute substitutes no other penalty, will exempt from punishment all persons who may have offended against the provisions of such repealed law, unless it be otherwise declared in the repealing statute." The courts have held, construing this statute, that where a case is appealed, and, pending such appeal, the law is changed, the Appellate Court must dispose of the case under the law in force when the decision is rendered; and if the law has been repealed, no further proceedings will be taken under the repealed law to enforce the punishment. Wall v. State,18 Tex. 683; Sheppard v. State, 1 Texas Crim. App., 522; Hubbard v. State, 2 Texas Crim. App., 506; Montgomery v. State, 2 Texas Crim. App., 618; Tuton v. State, 4 Texas Crim. App., 472; Halfin v. State, 5 Texas Crim. App., 212; Chaplin v. State, 7 Texas Crim. App., 87; Monroe v. State, 8 Texas Crim. App., 343; Boone v. State, 12 Texas Crim. App., 184; Fitze v. State, 13 Texas Crim. App., 372; Pinckard v. State, 13 Texas Crim. App., 373; Freeze v. State, 14 Texas Crim. App., 31; Prather v. State, 14 Texas Crim. App., 453; Mulkey v. State, 16 Texas Crim. App., 53; Whisenhunt v. State, 18 Texas Crim. App., 491; Woodlief v. State, 21 Texas Crim. App., 412; Wells v. State, 24 Texas Crim. App., 230; Dawson v. State, 25 Texas Crim. App., 670; Robinson v. State, 26 Texas Crim. App., 82; Lawhon v. State, 26 Texas Crim. App., 101; Ex parte Cox, 28 Texas Crim. App., 537; Kenyon v. State, 31 Tex.Crim. Rep.. This has been held even where the repeal of a civil statute repeals the penalties imposed with regard to its enforcement. There can be no penalty or criminality in violating a repealed statute. State v. Robinson, 19 Tex. 479 [19 Tex. 479]; Etter v. Ry. Co., 2 Ct. Apps. (Civ. Cases), 61. It will be observed, in this connection, that where, in regard to sales to minors, the local option law has been put into effect in a given territory, there is no provision in the local option law keeping alive pending cases for sales to minors. This being the legal rule, when local option went into effect, the law with reference to sales to minors is abolished. See Atkinson v. State,46 Tex. Crim. 229. There is, therefore, no predicate under the facts or the law which would justify the County Court in trying applicant for a sale to a minor months after the local option law had set aside and superseded the law with reference to sales to minors in the given territory. Referring to this, it is shown by the record that at the time applicant was tried in the Justice Court, local option was not in effect, but at the time he was tried in the *Page 383 County Court, the local option law had been in effect for several months. The conclusion, therefore, is inevitable that at the time applicant was tried in the County Court, the local option law had superseded the law with reference to sales to minors, and, therefore, he could not be tried or punished for selling to the minor.
3. A writ of habeas corpus will lie to release from custody when punishment is sought where there is no statute on which to predicate the prosecution, or where the statute has been repealed, unless the prosecutions under the former law are kept alive by some provision of the repealing statute. There must be a law authorizing a prosecution before a citizen of this State can be punished. A repealed statute can not form the basis of a prosecution, and here there was no substitute punishment for sales to minors in the local option territory, nor any provision keeping the prior cases in existence or authorizing their prosecution or punishment. Under such circumstances the judgment is necessarily void if a conviction is had for the obvious reason that there was no law under which the party could be tried and punished. This is not a mere irregularity, nor is the judgment simply voidable. If this proposition is not correct, then any citizen can be punished without a law authorizing the punishment; nor would it be an irregularity simply because he could not for any reason take an appeal from the conviction. The judgment would be void for want of a law authorizing the prosecution and punishment. It is not correct to say under these circumstances that the conviction and punishment would be but an irregularity. The question is jurisdictional. The court would not have jurisdiction, under such circumstances, of the subject matter, and could not render any judgment in the case. Why? First, because there is no law under which the prosecution can be maintained or the punishment inflicted; second, the court could not obtain jurisdiction of the person; third, it could not obtain jurisdiction of the subject matter, for there is no subject matter to which the jurisdiction of the court could attach; fourth, it could not render any judgment for want of a law authorizing the prosecution and conviction, and no court ought to punish without having a law under which to try and punish. See White's Code of Criminal Procedure, article 150, subdivisions 6 and 7, of the notes for collated authorities. This has been the invariable rule in this as well as the Supreme Court, at least since the case of Ex parte Degener, 30 Texas Crim. App., 566. It has always been held that on habeas corpus a judgment can be attacked if void as well as for the reasons above stated. The want of statutory penal law would render the judgment of conviction necessarily void. Under a writ of habeas corpus the court can look behind the judgment in such cases. Many of these cases will be found collated in applicant's brief. See also Ex parte Parker, 35 Tex.Crim. Rep.. An indictment by a grand jury composed *Page 384 of more or less than twelve jurors is violative of the Constitution and laws of this State. Hence, the indictment and conviction in that character of case would be void, and an inquiry can be had into this state of case by evidence, and if the fact is so found, the judgment will be set aside and the party released on habeas corpus, for in such state of case the indictment and conviction would be void. It would not be a mere irregularity. This is true, although the party may have had the benefit of his appeal and lost by reason of an affirmance. In other words, if the facts are such as to justify holding the judgment void, the writ of habeas corpus will authorize going behind the judgment and inquiring into the facts. Ex parte Parker, supra; Ex parte Ogle, 61 S.W. Rep., 122; Ex parte Reynolds, 35 Tex.Crim. Rep.; Lott v. State, 18 Texas Crim. App., 627; McNeese, v. State, 19 Texas Crim. App., 49; Smith v. State, 19 Texas Crim. App., 95, and numerous other cases not necessary here to collate.
If the agreed statement of facts are true, and they are conceded to be true by parties to the record, this judgment in the County Court was rendered under a law that had been vacated, repealed or put out of existence by reason of putting the local option law into effect. The local option law, under such circumstances, had superseded the law in regard to selling to minors months before the trial and conviction in the County Court, and it is immaterial whether the question was there raised or not as in the case of a vicious judgment under a void indictment found by more or less than twelve grand jurors.
For the reasons indicated, I can not agree with my brethren, and firmly believe that applicant is entitled to be discharged from custody, and this, too, although he had appealed to this court and the appeal had been dismissed for want of jurisdiction: