The appeal is from a conviction for the possession of liquor for the purpose of sale, with a fine of $400.00.
The State's Attorney has filed the following brief in this cause:
"Appellant was charged by complaint and information in the County Court of Grayson County, Texas, with the offense of possessing whisky for the purpose of sale in a dry area. The State established by its evidence that certain officers, armed with a search warrant, searched appellant's premises on the 14th day of March, 1947, and recovered fourteen pints of assorted whisky.
"The appellant offered no evidence. The jury returned a verdict of guilty, and assessed appellant's punishment at a fine of $400.00.
"By proper allegation in the complaint and information, the State pled that Grayson County was a dry area, but we find no evidence in the record proving or tending to prove that said county was a dry area. We submit that it was incumbent upon the State to not only allege but to prove, if it could, that Grayson County was a dry area. See Trapp v. State, 145 Tex. Crim. 235,167 S.W.2d 525; Brown v. State, 117 S.W.2d 107; Sweeten v. State, 120 S.W.2d 1074; Phariss v. State,126 S.W.2d 981.
"The State therefore respectfully submits that said cause should be reversed and remanded."
The suggestion is justified by the record. It was incumbent upon the State to make out its case, which it did not do.
The judgment of the trial court is reversed and the cause is remanded.
ON MOTION FOR REHEARING.