Appellant was convicted of selling intoxicating liquors in prohibition territory and his punishment assessed at one year confinement in the State penitentiary.
The most serious question in the case is presented in a motion to quash the indictment, on the ground that the indictment alleged "and thereupon the Commissioners Court of said Bell County, Texas, did pass and publish an order declaring the result of said election and prohibiting the sale of intoxicating liquors," the contention being that the indictment should have alleged that the publication was made by order of the county judge and not the Commissioners Court did "pass and publish an order," and that an indictment that fails to allege that the order was published by order of the county judge or as required by law is insufficient. In the Hode Carnes case, 50 Tex. Crim. 282, the question of whether an indictment must contain the allegation that the order had been published by the order of the county judge, *Page 335 and that an allegation it had been published by order of the Commissioners Court is discussed at length in the opinion of the court, and in the dissenting opinion of Judge Brooks. Theretofore, as shown in the opinion of Judge Brooks similar forms of indictment had been approved by the court, but the Carnes case has been followed in a number of cases cited in Branch's Ann. Penal Code, page 690, section 598 — the last case decided so holding being Smitham v. State, 53 Tex. Crim. 173. No case has been before this court in which this question was involved since the rendition of the Smitham case, supra, but we would consider the cases conclusive on that question and follow them had not the Legislature after the rendition of the Carnes case, supra, amended article 5728 (old art. 3397) and by this amendment provided that in the contest of an election held on the prohibition question that the "District Court shall have jurisdiction to try and determine all matters connected with said election, including the petition of such election and all proceedings and orders relating thereto, embracing final count and declaration and publication of result putting local option into effect; and provided that if no contest of said election is filed and prosecuted in the manner and within the time provided,it shall be conclusively presumed that said election as held andthe result thereof declared, are in all respects valid andbinding upon all courts."
It will be noticed that the Legislature by this Act, if no contest of the election was held, requires the courts to conclusively presume "that the petition and all proceedings and orders relating thereto, embracing final count and declaration and publication of result putting local option into effect are in all respects valid and binding."
Since the amendment of article 5728 its provisions have been frequently before this court for construction. (Hardy v. State, 52 Tex.Crim. Rep.; Phillips v. State, 53 Tex. Crim. 505; Evans v. State, 55 Tex.Crim. Rep.; Romero v. State, 56 Tex.Crim. Rep.; Ex parte Thulemeyer, 56 Tex. Crim. 337; Jerue v. State, 57 Tex.Crim. Rep.; Wooten v. State, 57 Tex.Crim. Rep.; Wesley v. State, 57 Tex. Crim. 277; Gipson v. State, 58 Tex.Crim. Rep.; Doyle v. State, 59 Tex.Crim. Rep..) In each and all of these cases it has been held that on the trial of a case, if no contest has been instituted, this court must conclusively presume (upon proof that an election had been held and the result declared) that all necessary steps to put it in force have been taken, and no evidence will be admitted tending to show that such election was illegal or proper orders had not been made. In the case of Jerue v. State, supra, it is stated that it was desired to prove that the election was illegal because the notice of election was not completed and published in the manner required by law, and it was held: "Since the passage of the Act of the Thirtieth Legislature (art. 5728) in respect to contests of elections and the presumption of validity, this point is no longer available to appellant." In Evans v. State, supra, this court says: "It follows, therefore, that the court did not err in refusing to *Page 336 permit the appellant to introduce evidence going to show irregularities or defects in the initiatory steps necessary to place local option in effect. It was proper for the court to have the county attorney to introduce sufficient number of the orders of the Commissioners Court to show the county had adopted local option. It was also proper to refuse to permit appellant to contest the validity of said orders."
It is thus seen that since the adoption of article 5728, as amended after the rendition of the opinion in the Carnes case, supra, whenever the question has been presented to the court for review, it has been held that on the trial of a case it is only necessary to prove that the election was held and prohibition received a majority of the votes, or had been adopted, and when this proof is made, this court and all other courts are required by the statute to conclusively presume that all other steps necessary to putting local option into effect had been taken and were legally done.
Prior to the adoption of the statute it had been held necessary to allege and prove that the publication had been made, and that prohibition did not go into effect until it was shown that the publication had been made in accordance with law, and the Carnes case and other cases following it held it was necessary to allege and prove that the publication had been legally made. While if it were an original proposition we would be inclined to hold that article 5722 was not subject to the construction given it in the Carnes case, as that article does not provide that the publication shall be made on the order of the county judge, but rather that the county judge shall select a paper in which the order made by the Commissioners Court shall be published, yet but for the amendment of article 5728, adopted after the rendition of the Carnes opinion, and evidently superinduced in part by that opinion, we would not change the holding of the court but follow the construction there given that article. But the Legislature had the legal right to adopt article 5728, and it has been upheld in opinions by every judge sitting on this court since its adoption, and it has been construed to mean, and in fact says, in the absence of a contest of the legality of the election and the orders declaring the result and publication of the result the court shall conclusively presume them to be valid and binding upon all courts, and no person on the trial can raise any question of the validity of such orders on the trial of a case.
As it is no longer necessary to prove that the publication had been made, but only that an election had been held in the named territory and prohibition adopted, when the trial court and this court must conclusively presume that prohibition is in force, it is no longer necessary to allege in the indictment that the publication had been made, and such allegation being no longer essential to the validity of the indictment, if such allegation should be held to be improperly made, it can be and should be treated as surplusage. Mr. Branch in his work on Criminal Law, section 905, correctly states the rule to be: "If not descriptive of that which is legally essential to the validity of the *Page 337 indictment, unnecessary words or allegations may be rejected as surplusage," citing Mayo v. State, 7 Texas Crim. App., 342; Warren v. State, 17 Texas Crim. App., 207; McConnell v. State, 22 Texas Crim. App., 354; Hammons v. State, 29 Texas Crim. App., 445; Taylor v. State, 29 Texas Crim. App., 466; Loggins v. State, 32 Tex.Crim. Rep.; Lassiter v. State, 35 Tex. Crim. 540; Jordan v. State, 37 Tex.Crim. Rep.; Clark v. State, 41 Tex.Crim. Rep.; Bolton v. State, 41 Tex. Crim. 642; Rawls v. State, 48 Tex.Crim. Rep.. Again he says: "If eliminating surplusage, the indictment so avers the constituent elements of the offense as to apprise defendant of the charge against him, and enable him to plead the judgment in bar of another prosecution, it is good in substance, under our Code, and, therefore, sufficiently charges the offense," citing Coleman v. State, 2 Texas Crim. App., 512; Burke v. State, 5 Texas Crim. App., 74; Mayo v. State, 7 Texas Crim. App., 342; Holden v. State, 18 Texas Crim. App., 91; Cudd v. State, 28 Texas Crim. App., 124; Hammons v. State, 29 Texas Crim. App., 445; Taylor v. State, 29 Texas Crim. App., 466; Loggins v. State, 32 Tex. Crim. 358; Lassiter v. State, 35 Tex.Crim. Rep.; Jordan v. State, 37 Tex.Crim. Rep.; Lomax v. State, 38 Tex. Crim. 318; Clark v. State, 41 Tex.Crim. Rep..
Mr. Bishop, in his work on Criminal Procedure (vol. 2, sec. 478, 2d ed.) says: "Surplusage is any allegation without which the pleading would remain adequate. Needless words and averments may ordinarily be treated as mere waste material, having no legal effect whatever. They need not be proved or otherwise regarded."
Eliminating all reference to the publication from this indictment, it would read, omitting formal parts: "In Bell County, Texas, on the 13th day of November, 1915, an election in accordance with the laws of this State was held under the authority of the Commissioners Court of said Bell County, Texas, theretofore duly made, to determine whether or not the sale of intoxicating liquors should be prohibited in Bell County, and the qualified voters at said election did then and there determine that the sale of intoxicating liquors should be prohibited in said county; and thereupon the Commissioners Court of said Bell County, Texas, did pass an order declaring the result of said election and prohibiting the sale of intoxicating liquors in said Bell County, Texas, and thereafter, towit: on or about January 29, 1916, in said State and county, one Clark Cleveland did then and there unlawfully sell intoxicating liquors to Polly Parish in violation of said law," etc.
It is seen that the indictment informs appellant that prohibition had been adopted in Bell County, Texas, and while it was in force he had unlawfully sold intoxicating liquors to Polly Parish. How could he more specifically have been informed of the charge against him? Our Criminal Code specifically provides in article 475 that matters of which judicial notice is taken and presumptions of law need not be stated in *Page 338 an indictment. This is not only the rule in this State by virtue of the statute above quoted, but as stated in Standard Enc. of Pro., vol. 12, p. 347, it is the rule at common law in the absence of statute. It states the rule to be: "Neither presumptions which the law makes from facts stated, nor matters of which judicial notice is taken by the courts need be stated in an indictment," citing cases from nearly all the States, including among them Misher v. State, 41 Tex.Crim. Rep.. In that case defendant was indicted by the grand jury of Guadalupe County for rape committed in Colorado County. It was contended that the indictment was defective because it did not contain an allegation that Guadalupe County and Colorado County were in the same judicial district. The court held that the court was required to take judicial notice of the laws of the State, and, therefore, it was unnecessary to so allege in the indictment.
Article 5728 provides that when a prohibition election is held, and not contested within thirty days when it is proven that prohibition was adopted, this court and all other courts must conclusively presume that the petition was a legal one, and that all proceedings and orders relating thereto, embracing final count and declaration and publication of the result putting prohibition in effect, are in all respects legal and binding. As no evidence will be received to dispute these presumptions, the allegations in the indictment, omitting as surplusage all reference to publication, are sufficient, and the court did not err in overruling the motion to quash the indictment.
We do not wish to be understood to question the correctness of the ruling in the Carnes case, supra, when made, as the law then required proof of publication be made, but the Legislature having seen proper by later enactment to render it unnecessary to make that proof, and only requiring that proof need be made that an election had been held and prohibition adopted, when all courts must conclusively presume that all orders were made, and legally made, putting prohibition in force, it is no longer necessary to allege and prove that the publication had been made, and, therefore, the same rule does not now prevail by virtue of the statute that did prevail when the opinion in the Carnes case was rendered.
The only other question presented in the record is one complaining of the remarks of the district attorney. The remarks under ordinary circumstances would be improper, but the court in approving the bill states that the remark was brought about by the argument of counsel for the defendant, and was but in answer to the argument of appellant's counsel. Under such circumstances the language is not such as we would feel authorized to reverse the case on account of. However, we will state that both counsel for the State and appellant should in their argument discuss only the evidence adduced on the trial and legitimate deductions to be drawn therefrom.
The judgment is affirmed.
Affirmed.
DAVIDSON, JUDGE, does not agree to this affirmance. *Page 339