At a former day of this term the judgment herein was affirmed. On rehearing the point was made that the indictment failed to allege the time of holding the local option election, or rather the time the result of that election went into effect under which appellant was indicted, and that inasmuch as it is a jurisdictional question, it is a matter of substance and rendered the indictment fatally defective for not so alleging. My brethren concede error, but hold it is a matter of form, and cite cases which hold that the failure of the indictment or information to show on its face that it was presented in and to the proper court constitutes matter of form and not of substance. With that line of cases I am satisfied. That has been the settled rule in Texas and has passed beyond the realm of discussion, but that is not the question here involved. The information in this *Page 516 case does recite the fact that it was presented in and to the County Court of McLennan County. Part of the information is in full compliance with the statute; but the contention here is, that the information does not show the date the local option law went into effect, and that this is a necessary jurisdictional allegation inasmuch as if the election was held under the old law it would be a misdemeanor, but if held since the new statute of 1909 went into effect it would be a felony, and that it is necessary to allege that date to show jurisdiction in the court in which the prosecution was instituted. If a felony it could not be brought in the County Court; if a misdemeanor the District Court would not have jurisdiction. The time of the commission of the offense is jurisdictional, and is a matter of substance and not of form. The court in the recent case of Head v. State, reached that conclusion, and, in my judgment, in so far as it held it was necessary to allege the date the law went into effect so as to show whether the case is a misdemeanor or felony, is correct. This question being jurisdictional, is a matter of substance, and it is, therefore, essential to state the date of the election, because it takes this allegation to show whether the offense charged is a misdemeanor or felony. It may be either. If the election occurred before the felony statute went into effect it is a misdemeanor. If the election occurred subsequently it is a felony. On the face of the pleadings it is essential to the jurisdiction of the court to allege facts under these laws showing the court which had jurisdiction of the offense sought to be charged. The County Court could not try the felony; the District Court could not try the misdemeanor. Tested by the pleadings, it is essential to state sufficient facts to show the jurisdiction. This is illustrated by the law which constitutes misdemeanor and felony theft. Under those statutes where the value of the property is under fifty dollars it is a misdemeanor; if fifty dollars or over it is a felony. It is essential under the general statute of theft to allege the value of the property in order to show jurisdiction of the court.
In this case it was necessary to prove that the election occurred at a time essential to support proper pleadings. If felony, the election must have occurred on a date subsequent to the effectiveness of the late statute. Everything, by statute, necessary to be proved must be alleged.
Again, the new election supersedes the old election either by repealing it absolutely by vote of the people, or if successful the new election takes the place of the old by substituting the felony statute for the misdemeanor statute. In either event, the old law would pass out and could not form the basis of a prosecution for any new offense. The pleadings must state the law, or the facts, at least, showing which law was in operation at the time of the offense as a predicate for the prosecution. It is, therefore, essentially a matter of substance. It is the very thing itself as indicated in the illustrations given above. *Page 517 The case of Walker v. State, 7 Texas Crim. App., 52, supports this proposition as does the Simpson case, 10 Texas Crim. App., 681, and Pitmann case, 14 Texas Crim. App., 576. These all sustain thus far the Head case, and the view I here suggest. The cases cited by my brethren in the opinion in this case on rehearing do not reach or touch the question at issue. They only hold that the grand jury must present the pleadings in the correct court. It is not descriptive of the offense, nor does it reach any matter of substance of the offense. Time is always a matter of substance and not form. See White's Ann. Code of Crim. Proc., p. 254, for authorities. See also 10 Ency. of Plead. and Prac., p. 514, where it is said: "When time is of the essence of the offense or is an essential part of the description thereof, it should be accurately laid, or at least with such precision as may be necessary to describe the offense, thus where an act is prohibited on certain particular days it must be charged to have been done on such day or days." The authorities are collated in support of the text in notes 1 and 2 on page 514, and note 1 on page 515. The same rule is laid down in the 12 Ency. of Plead. and Prac., at pages 188-9. This language is quoted: "When the court has no lawful power to act by reason of the fact that such power either is not conferred, or is expressly withheld with regard to the subject matter of the suit, the parties thereto can not be said to waive their objection to this want of power because it is not made at the proper time. Such objection can not be waived and is fatal at any stage of the proceedings." For a great number of authorities, too numerous here to collate, see note 1, page 189. These authorities are collated practically from every State in the Federal Union. Again, in the same volume at page 120 this language is found: "Every power exercised by any court must be found in and derived from the law of the land, and be exercised in the mode and manner prescribed by that law. If the court can not try the question except under particular conditions, or when approached in a particular way, the law withholds jurisdiction unless such condition exists, or the court is approached in a manner provided, and consent will not avail to change the provisions of the law in this regard." For citation of many cases see notes 4 and 5 on page 120 of said volume.
If either of two laws may be enforced by reason of a contingency, or whether one or the other is in effect is dependent upon the occurrence of a certain event, this event or contingency must be alleged in order to justify the bringing of the suit or the filing of pleadings. In other words, where the existence of the law depends upon a contingency, that contingency must be alleged as having occurred in order to justify the litigation. Unquestionably, as I understand the law, it should be stated that the required events has taken place, for the simple reason that the act does not and can not become operative or the suit justified until the occurrence of that event. It takes this to vitalize the act or justify the bringing of the suit. It would *Page 518 follow then that in order to bring the accused within the denunciation of the law or within the particular court, or to give the particular court jurisdiction, it is necessary to allege the time in order to show such jurisdiction. Unless that event has occurred or that contingency has arisen, the prosecution can not be maintained, and if a certain time is necessary to show whether it is a felony or misdemeanor, then it is a matter of substance and must be alleged in order to bring the suit in the proper court.
I have thought it proper to state these views in order that I may not be understood as agreeing with my brethren in regard to what is necessary allegations charging a violation of the law as to whether it is a felony or misdemeanor. To my mind it is essentially a matter of substance, because upon that one fact will depend the jurisdiction of the court trying or seeking to try the case.
Not being able to agree with them in their opinion on rehearing, I file this as my dissent.