Appellant was convicted of selling whisky in violation of the statute under an election held since the passage of the felony statute.
1. An attack is made upon the indictment because it does not allege the date upon which the election was held putting local option into effect. Under the decisions of this court, this objection is not well taken. See Wade v. State, 52 Tex. Crim. 608.
2. It is suggested in motion for new trial that the court misdirected the jury as to the law and the penalty for its violation in that the court instructed the jury that in case they should convict they would punish by imprisonment in the penitentiary; whereas, in truth and in fact the offense with which the defendant stands charged is not a felony, and not punishable by imprisonment in the penitentiary. The facts show that if a sale occurred it was about March, 1910. It further shows that an election was held in December, 1909, since the passage of the felony statute by the Legislature. It is further shown that local option law had been in effect prior to that time by virtue of an election held in 1906. The contention of appellant seems to be this: that the law was in force by virtue of the election of 1906, and that the election held in December, 1909, was but the continuance of the law in force, and, therefore, it was not a felony but a misdemeanor. We have heretofore held in Hood v. State, 52 Tex.Crim. Rep., that where local option election was held in 1901 and again in the same territory in 1904, both resulting in favor of prohibition, the prosecution could be predicated upon either election, and there was no error in admitting in evidence the orders of the Commissioners' Court showing the adoption of the local option law in 1901. Under the law as it then existed the punishment *Page 583 was the same under both elections, and the law having been continued in operation and the punishment the same, it would make no difference under which election the prosecution occurred. The question there decided is not the question here presented. If the punishment was the same under the late Act of the Legislature as it was before, there might be no repeal. The territory being the same, the punishment being the same, subsequent elections holding the law in operation would make no difference in the status of the law and the parties. As the law is now the punishment is different from that under which the election was held in 1906 as it relates to this case. The Legislature is authorized and required by the Constitution to pass local option statutes whereby the people may hold such elections and put the law into operation. The Legislature, therefore, is empowered by the terms of the Constitution to pass local option laws and prescribe therefor punishments for its violation. Whether the law should go into effect or not, so as to enforce these punishments is relegated to the people of the particular territory where it is sought to be put into operation. With that the Legislature has no concern. The Legislature did pass the late Act making the punishment a felony, and we have held in the case of Lewis v. State, 58 Tex.Crim. Rep., 127 S.W. Rep., 808, that these punishments could not be made operative in the territory where local option was in existence at the time of the passage of the statute; that the people must again vote upon the law if they desired to make violations of the law a felony; that the Legislature could not do so. This was the object and purpose of section 20, article 16, of our State Constitution. Of course, this amended statute could not go into operation as before stated until the people had voted upon it. At the time they voted in this particular case the new statute had been enacted. The election in December, 1909, operated as a repeal of the former punishment, and by putting the law into operation the people adopted this amended statute with its punishment. So far as the new punishment is concerned, the amended or substituted law became operative in the territory after the election was held subsequent to the passage of that statute as to all offenses thereafter committed. The people had so ordered by their vote. This they had the legal right to do. So far as that particular election is concerned, the amended statute prescribing the felony punishment was and is the law.
Finding no reversible error in the record, the judgment is affirmed.
Affirmed.
[Rehearing denied December 21, 1910. — Reporter.] *Page 584