The motion for rehearing presents nothing new from what was originally presented, considered and decided in the previous opinion. Neither were any additional authorities cited that have not been considered.
However, upon reinvestigating the question we have found where we think the identical question raised in this case has been previously *Page 259 decided by this court against the appellant's contention. By diligent search we failed to find this decision before the original opinion was rendered herein. Neither appellant nor the State had called our attention thereto. The case we refer to is Raby v. State, 42 Tex.Crim. Rep.. That case shows that in 1895, precinct No. 4, of Bosque County, voted for prohibition and the law was thereafter, under said election, properly declared and in force in said precinct. In 1897 the entire county voted on prohibition and it was carried at that election in the whole county and properly so declared. The defendant Raby was indicted in three counts, the first alleging a sale under the law after the whole county had voted for prohibition. The second for violating said law under the election in 1895, in which said precinct No. 4 had voted for prohibition and the law properly declared in force thereunder. It is unnecessary to state the third count. This court in that case held: "The question here presented is whether or not a conviction for violating the local option law in precinct No. 4 can be maintained when, subsequent to the adoption of local option in said precinct, the entire county had voted on the question, and adopted local option. It has been held that where local option has been legally adopted in a justice precinct a subsequent election ordered and held for the entire county is authorized by law, and if local option is defeated in the entire county it does not repeal or abrogate local option in the precinct where it formerly existed. Aaron v. State, 34 Tex.Crim. Rep.; Ex parte Cox, 28 Texas Crim. App., 537. In our opinion, where local option is adopted for the entire county, it absorbs precincts of the county where local option formerly existed; the law being merged into the county local option law, so that an offense occurring in the precinct territory is no longer an offense against the precinct law, that having been obliterated, but it is an offense against the county local option law, which alone exists in the territory." And that case was reversed by this court because the defendant was convicted under the law declared for precinct No. 4 alone.
We have no doubt of the correctness of our holding in this case. The motion is, therefore, overruled.
Overruled.