Appellant was convicted in the county court of Grayson County for violation of the local option law, and his punishment assessed at a fine of $60 and thirty days imprisonment in the county jail.
The only question of importance urged as a ground for reversal is that the complaint and information filed in the case charged no offense against the law. To support this contention the authority of Carnes v. State, 50 Tex.Crim. Rep., 99 S.W. Rep., 98, is invoked. The decision in that case was rendered by a divided court. Whatever may be *Page 552 thought of the correctness of the decision then rendered, it is not believed it should be extended beyond the express holding of the opinion in that case. We think the present case is clearly distinguishable from the Carnes case. Article 3391, Sayles' Revised Statutes, provides, in effect, that the order of the court declaring the result of a prohibition election and prohibiting the sale of such liquors shall be published for four successive weeks in some newspaper published in the county wherein such election has been held, which newspaper shall be selected by the county judge for that purpose; or if there be no newspaper published in the county, then the county judge shall cause publication to be made by posting copies of said order at three public places within the prescribed limits for the aforesaid length of time. In the Carnes case the information charged that, after the order of the commissioners court was entered prohibiting the sale of intoxicating liquors, that "thereupon the commissioners court of said county did pass and publish an order declaring the result of said election and prohibiting the sale of intoxicating liquors in said county." The objection was made in that case, "that the law requires the county judge to make publication of the result of such election in a newspaper selected by him, or shall cause the same to be published by posting copies of said order in three public places." It is declared in that case that the law makes it incumbent upon the county judge to attend to these matters, and that it was his duty, under the direction of the statute, and not by an order of the commissioners court. It will be seen, therefore, in the Carnes case, that there was an affirmative and express allegation in the indictment that the commissioners court did pass and publish the order declaring the result, and the indictment was held invalid because this duty was imposed by law on the county judge. The information in this case charges that "the commissioners court of said county had duly made, passed and entered its order declaring the result of such election and prohibiting the sale of intoxicating liquors within said county as required by law, and had caused said order to be published in the manner and form and for the length of time required by law." It was held by this court in the case of Key v. State,37 Tex. Crim. 77, that an information which charged that "said sale was made after the qualified voters of said county had, at a legal election held for that purpose in accordance with law, determined, that the sale of intoxicating liquors should be prohibited in said county," was a sufficient averment that the election was a legal election and that same was had in pursuance of the necessary requisites pertaining thereto. The effect of the allegation in this case is that the order required to be published had been published in the manner and form and for the length of time required by law. The additional allegation that such publication was caused to be made by the commissioners court does not, in our opinion, invalidate same. We, therefore, overrule the assignment.
There being no error, as we believe, in the record, the judgment of the court below is affirmed. Affirmed. *Page 553
ON REHEARING. February 12, 1908.