My brethren have affirmed the judgment herein, and what I shall say here will also apply to causes Nos. 4137, Pete Hawthorne v. State; 4165, Leon Vance v. State; 4167, Will Dupree v. State. These cases involve the same question.
Omitting all portions except that directly at issue, the indictment failed to allege that the order had been published as required by law. It alleged that the Commissioners Court passed and published an order. The authorities are adverse to this as sufficient pleadings, and are collated by Mr. Branch in his recent Annotated Penal Code, on pages 694 and 695. These cases all hold that before there can be a violation of the local option law the result of such election must be so published as to put it into operation. In section 1231, on page 695, Mr. Branch thus states the rule: "Local option must be shown to be in force. The order declaring the result in favor of prohibition should be shown in the statement of facts on appeal; the court will not take judicial knowledge that local option is in force, nor of the time when it went into effect." There are a great number of cases cited in support of that proposition, and, so far as the writer is aware, all of them, without exception, are of the same import. It is also the rule, that local option does not become operative until the order declaring the result has been published for four successive weeks. Mr. Branch has collated these decisions in his valuable Annotated Penal Code, on page 696. Among others, Phillips v. State, 23 Texas Crim. App., 304; Jones v. State,38 Tex. Crim. 533; Chenowith v. State, 50 Tex. Crim. 238, and Beaty v. State, 53 Tex.Crim. Rep.. I might cite cases at greater length. My brethren cite a line of cases which hold that a local option election can not be contested as a collateral matter in the trial of a local option case. The statute so provides. There is a line of cases growing out of that statute, which hold that after a certain length of time a local option law shall not be contested. That article will be found in the Revised Civil Statutes, 1911, article 5728. That contest matter, however, only refers to the election, which has nothing to do with the order of the judge declaring the result by publication. Publication is not a matter of contest. It is the election and manner of holding it, whether there were fraudulent votes and matters of that sort growing out of and incidental to the election itself only which are subject of contest. It has nothing to do with the publishing order of the judge. It will be noticed by the terms of that statute that it only provides for contesting the elections. Prosecutions may go on, although there is a contest pending, but in all cases, everywhere and under all circumstances, so far as the writer knows, the law never goes into effect, nor can a prosecution be maintained under it, until the county judge has made the proper publication, etc. Some of these cases hold that in the trial of parties for the violation of that law the defendant can not object successfully to the introduction of the order of the Commissioners Court declaring the result of the election. But this has nothing to do with the sufficiency *Page 340 of the pleadings in the indictment. That only refers to rules of evidence. The indictment setting out the offense must conform to the statute, and can not be maintained until the law is in force. The manner of proving the case is one thing; the sufficiency of the indictment or information is a very different proposition. The majority opinion has confused the rules of evidence with proper allegations in the indictment. The indictment must legally allege the offense. The evidence comes only in support of such allegations. It is the rule everywhere understood in our jurisprudence, whether the law be local or general, that a prosecution can not be maintained until the law under which it is sought to be maintained becomes operative. If the Legislature sees proper to make a general law go into effect immediately, a party could be held liable for subsequent violations of that law. If it goes into effect ninety days after adjournment, prosecutions can not occur until the ninety days shall pass. If the Legislature sould see proper to extend that time and make it operative six months or at a later date, the courts would be bound by it. Until the law becomes operative a prosecution can not be had under it. The Legislature was required by the Constitution to pass reasonable laws whereby the people of counties, justice precincts, cities, towns and subdivisions can vote on the exclusion of the sale of intoxicants in such territory. The people reserved this right to themselves and so decreed it in the Constitution. A majority vote have authority to put it into operation. When the vote has been had it does not become operative until the county judge has properly published the result. The Legislature so made it. The people so voted. They understood and so voted that it would not be a law until the expiration of the publication, just like they understood that the general law of the State would not be operative until the time fixed by the Legislature when its acts should become operative. Until it has been alleged that the law is operative, there is no sufficient pleading. The indictment must allege an operating law. The rules of evidence and the pleadings in an indictment are quite distinct and different. A sufficient pleading is necessary to admit required facts. Because the accused can not except to evidence introduced under the article above cited, 5728, Revised Civil Statutes, affords no reason why the indictment should not allege the offense. Under a code practice such as we have in Texas all necessary elements of the offense must be averred in the indictment to make it sufficient. The evidence is a different thing. The fact that a party may or may not be able to introduce a certain line of testimony under the indictment, does not make the indictment sufficient. The sufficiency of the indictment is tested by the terms of the law under which it is framed. That is the case here. The indictment here failed to allege a case under an operating law. This indictment does not charge the offense and there is no contention that it does, but my brethren hold that because appellant could not object to certain testimony, therefore the indictment is sufficient. The authorities they cite in support of their proposition *Page 341 apply only to evidence and not to allegations in the indictment These cases have no application as authorities to the proposition for which they are cited. Rules of evidence do not constitute valid indictments. The case must be averred as basis for the evidence.
What I have said here refers also to the cases of Pete Hawthorne v. State, No. 4137; Leon Vance v. State, No. 4165, and Will Dupree v. State, No. 4167. I have thought proper to write this much by way of dissent.