The information upon which this conviction was obtained charged the unlawful possession of whisky for the purpose of sale in a dry area as the primary offense, and charged a prior conviction for an offense of the same character, in Cause No. 7114, in the County Court of Smith County. To this accusation, appellant pleaded guilty, before a jury, and his punishment was assessed at one year in jail.
Appellant, by motion for new trial, attacked the judgment of conviction, asserting that the judge before whom the case was tried was disqualified, by reason of his having served as counsel for the State. The effect of this contention is that the conviction in Cause No. 7114 — the prior conviction alleged in the instant case — was obtained upon an information charging appellant with the sale of whisky in a dry area, and was a prior conviction for a similar offense in Cause No. 6681, on the docket of the County Court of Smith County; that, at the time of the conviction in Cause No. 6681, R. P. Power was an assistant county attorney, representing the State in that cause; and that said R. P. Power was the Judge of the County Court of Smith County, and before whom the instant case was tried. By such allegation, appellant sought to bring this case within the rule *Page 86 announced in Adcock v. State, 172 S.W.2d 103, wherein we held that a judge was disqualified from sitting as a trial judge where the information charged a prior conviction for an offense of like nature, and in which prior conviction the judge represented the State.
Upon the trial of this case, the State introduced the information in Cause No. 7114 and the judgment of conviction predicated thereon. There is nothing in these instruments showing that, in said Cause No. 7114, a prior conviction was a part of the State's pleading, or the judgment of conviction. Hence appellant's allegation with reference to the State's using a prior conviction in Cause No. 7114 is not sustained by the proof. Upon the motion for new trial, appellant offered in evidence the complaint in Cause No. 7114, which did contain an allegation of a prior conviction in Cause No. 6681; but there is nothing to show that the information followed the allegation of the complaint in that particular. It must be remembered that, in cases of this character, it is the information and not the complaint that constitutes the State's pleading.
Appellant having pleaded guilty and having agreed, upon the trial of this case, that Smith County was a dry area, he is bound thereby. If the records of Smith County fail to reflect such dry status, as asserted by appellant in his motion for new trial, the exercise by him of the least diligence would have disclosed such fact.
The judgment of the trial court is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.