Appellant was convicted of violating the prohibition law in said county.
He had no attorney when tried, but procured one as soon as he was convicted. His able attorney has filed both an original and a supplemental brief which have had due consideration.
No motion was made to quash the indictment, but a motion in arrest of judgment was filed claiming the indictment was invalid. In view of his motion we will copy the indictment. It is:
"In the name and by the authority of the State of Texas:
"The grand jury of the County of McLennan and State of Texas, duly selected, organized and empaneled by the judge of the Fifty-fourth Judicial District of Texas, holding session of the District Court in and for said county, upon their oaths in said court present that heretofore, on the 20th day of October, 1917, in said McLennan County, an election was held in accordance with the laws of said State and under the authority of an order of the Commissioners Court of said county, theretofore duly made and published as required by law, to determine whether or not the sale of intoxicating liquors should be prohibited in said county, and the qualified voters of said election did then and there determine that the sale of intoxicating liquors should be prohibited in said McLennan County, and thereupon, towit: on November 3, 1917, the Commissioners Court of said county did pass an order declaring the result of said election, and prohibiting the sale of intoxicating liquors in said McLennan County, which order was duly entered of record on the minutes of said Commissioners Court, and which order was immediately thereafter duly published for four successive weeks in the Waco *Page 265 Morning News, a newspaper then and there published daily in said McLennan County, and being a newspaper selected in a manner as required by law for the then county judge of said county for the purpose of said publication, which selection and publication as aforesaid were duly certified to by the said county judge, and his certificate thereof duly entered on the minutes of said Commissioners Court as required by law, and that thereafter, towit: on or about the 30th day of December, 1917, and before the presentment hereof, one Tom Bashara did then and there unlawfully sell intoxicating liquor to Bob Gilbert in violation of said law aforesaid, which was then and there in full force and effect in said county, against the peace and dignity of the State."
His motion in arrest as to the claimed insufficiency of said indictment is on these grounds: 1. That it charges no offense under the law, in that it alleges that he sold the intoxicating liquor to Gilbert "in violation of said law aforesaid," when, as he claims, the only law referred to was in regard to holding elections to determine whether or not the sale of intoxicating liquor should be prohibited in said county, and no mention of any law fixing a penalty for the sale of intoxicating liquors is mentioned in the indictment. 2. That the indictment failed to allege the selection of a newspaper publishing the order of the Commissioners Court, and that the publication thereof was certified to by the judge of said county. 3. That it fails to fix the jurisdiction and venue, in that it does not allege that the offense was committed in said county.
At most, appellant's objections are hypercritical, and we think the indictment itself meets each of them. It is reasonably certain, even if that was necessary, that the law he is alleged to have violated was none other than the law prohibiting the sale of intoxicating liquors. It was wholly unnecessary for the indictment to allege what the penalty for his offense was. This is never done in an indictment. It plainly alleges the newspaper in which the Commissioners Court order was published, and that the publication thereof was certified by the county judge of said county. It alleges that the offense was committed in McLennan County. The "then and there" in the latter part clearly referred to McLennan County as the place in which the sale was made. (Branch's Ann. P.C., sec. 502.)
In his motion for a new trial for the first time he claimed that the testimony failed to prove the sale was made in said county. He has no bill of exceptions on the subject. The statute (art. 938, C.C.P.) requires that this court shall presume the venue was proven in the court below unless that was made an issue in the trial below and it affirmatively appears to the contrary by a bill of exceptions properly signed and allowed by the court below. The decisions of this court follow said statute. See some of them cited in 1 Branch's Ann. P.C., sec. 452. Besides, the proof shows that the sale was made in Waco, and this court judicially knows that Waco is in McLennan County. 1 Branch's Ann. P.C., sec. 263. *Page 266
The uncontradicted testimony shows that the said purchaser claimed to be sick, and told appellant he wanted some whisky, and asked if he knew where he could get some. Appellant told him he had some in his room, and he went with him to his room, and they both took a drink out of a bottle. The purchaser then asked appellant what he would let him have the balance of the whisky in the bottle for. Appellant told him that the bottle originally cost him $1.50, but that he would let him have it for $1, and that he, for that price, took the bottle. He did not then pay for it, but that appellant later dunned him for the price. That he knew it was whisky. The proof clearly shows the illegal sale of the liquor as alleged. Appellant cites and relies upon Waldstein v. State, 29 Texas Crim. App., 82. That case is not in point. Appellant was prosecuted therein for making a sale of liquor to a minor without a written order, under a different statute altogether, and shows a very peculiar state of facts. That decision, however, was not adhered to but in effect overruled under the later decisions of this court. Yakel v. State, 30 Texas Crim. App., 91. Under the prohibition law, a sale of whisky to a person claimed to be sick can legally be sold only on the written prescription of a doctor. (P.C., art. 598.)
The proof showed that the liquor appellant sold was whisky. No other proof was necessary to show it was intoxicating. This court has uniformly held that when the proof shows the liquor sold was whisky, that is sufficient to show that it was an intoxicant. 1 Branch's Ann. P.C., p. 700.
Appellant alleged other matters in his motion for a new trial which he briefs, but he has no bills of exception which are proper to raise the questions. Appellant's conviction was in every way legal and proper. No reversible error is shown.
The judgment is affirmed.
Affirmed.
ON REHEARING. November 20, 1918.