The conviction is for sale of intoxicating liquor in dry area. The punishment assessed is confinement in the county jail for a period of nine months.
Appellant's first complaint is that the court erred in declining to instruct the jury to return a verdict of not guilty because the complaint, which is the basis of this prosecution, is made by affiant upon information and belief and is therefore insufficient under Art. 1, Sec. 5 of our Constitution. That an indictment for perjury could not be sustained on an affidavit made on information and belief even though it was false. Art. 222, C. C. P., prescribes the requisites of a complaint. Sec. 2 thereof reads as follows: "It must show that the accused has committed some offense against the laws of the State, either directly or that the affiant has good reason to believe, and does believe, that the accused has committed such offense."
If an affiant had no good reason to believe that another committed an offense against the laws of this State, but made a complaint in which he charged that he had good reason to believe and did believe that such person committed an offense, he would be guilty of malicious prosecution, though he might not be convicted of perjury or false swearing. A complaint is not insufficient merely because an affiant states that he has good reason to believe and does believe that a certain person offended against the laws of the State. Complaints of this character have been held sufficient in the following cases: *Page 233 Fricks v. State, 58 Tex.Crim. Rep.; 124 S.W. 922; Anderson v. State, 34 Tex.Crim. Rep.; Branch's Ann. P. C., Sec. 478 and authorities cited.
Appellant next complains of the court's charge relative to the punishment that may be imposed for the sale of beer containing alcohol in excess of four per centum by weight in dry area. He contends that the punishment prescribed by Sec. 41 of Art. 666 P. C., (As amended, Acts 1937, 45th Leg., H. B. No. 5, c. 448 Sec. 39), applies to the sale of whisky in dry area, while the punishment prescribed by Sec. 26 of Art. 667 P. C., (As amended Acts 1937, 45th Legis., 1st. C. S., S. B. No. 20, Sec. 20), applies to the sale of beer in dry area. After a careful study of the Liquor Control Act as amended by the 45th Leg., we are convinced that the punishment prescribed by Sec. 41 of Art. 666 P. C. applies to the sale of beer as well as whisky in dry area, while Sec. 26 of Art. 667 P. C. applies to a failure on the part of a transporter to comply with the method of transporting beer across dry area.
Appellant also challenges the sufficiency of the evidence to show that the sale of beer took place in dry area as charged in the complaint and information. It was shown that an election was held within and for Justice Precinct No. 3 of Dallas County on June 12, 1897, for the purpose of determining whether the sale of intoxicating liquors should be prohibited within said justice precinct. The returns were canvassed and tabulated on the 23rd day of June, which disclosed that 597 votes were cast for prohibition and 280 against prohibition. That an order was duly made and entered on the minutes of the Commissioners' Court, declaring the result of the election as stated, and prohibiting the sale of intoxicating liquor within the precinct. That the County Judge of Dallas County duly published his proclamation in the manner and for the length of time required by law, and that no election has since been held within said territory legalizing the sale of intoxicating liquor within said territory. J. T. Prewitt testified that on the 20th day of May, 1938, he purchased from appellant at his place of business, four bottles of beer known as "Grand Prize Beer." That this took place in Justice Precinct Number Three, although he did not know exactly the boundary lines of said precinct. Mr. Henson, a chemist, testified that he made an analysis of the beer and found that its alcoholic content was 4.6 per centum by volume. What constitutes "alcoholic beverage" is defined by Sec. 3a of Art. 666 P. C. (See also subsection (b) of Sec. 4, Art. 666, P. C. which prohibits the sale of beer in dry area.) *Page 234
It may be true that Prewitt did not know exactly where the boundary lines of Justice Precinct Number Three were; yet appellant's place of business may have been so near the center of said precinct that the witness knew it was within said precinct. It is our opinion that the evidence is sufficient to sustain the jury's verdict. There is no merit in appellant's contention that the boundary lines of the precinct may have been changed since the election was held in 1897. Even if that were true, the same territory would nevertheless be dry area. The Commissioners' Court, by abolishing Precinct Number Three and combining it with a wet precinct, could not make that territory wet area. The only way that could have been accomplished would have been by a vote of the people who reside in said area which was voted dry in 1897. See Houchins v. Plainos et al, 110 S.W.2d 549 and authorities therein cited.
Appellant's other contentions have been examined by us and are deemed to be without merit.
No error of a reversible nature appearing, the judgment of the trial court is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.