*138ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.For the first time in the motion for rehearing our attention is called to a fatal defect in the information.
It is alleged that an election was held in Fisher County in November, 1902, under order of the Commissioners Court to determine whether the sale of intoxicating liquor should be prohibited in said county; that the Commissioners Court had canvassed the returns of said election and entered an order declaring the result to be in favor of prohibiting such sale, but there is a failure in the information to allege the publication of said order. There is such averment in the complaint but it is omitted from the information.
The prohibition election in question was held under the provisions of the Revised Civil Statutes of 1895. Art. 3396 thereof provided that when such election had resulted in favor of prohibition and the Commissioners Court had so declared and had “caused the same to be published as aforesaid, any person who shall thereafter” violate said law should be punished. It is apparent from the wording mentioned that under the 1895 statutes the local option law did not become effective until the declaration of the result had been published, hence the necessity of both alleging and proving said publication. See Watson v. State, 135 Tex. Cr. R. 632; 122 S. W. (2d) 311; Wilkinson, v. State, 131 Tex. Cr. R. 624, 101 S. W. (2d) 569; Whitmire v. State, 130 Tex. Cr. 372, 94 S. W. (2d) 742; Alexander v. State;, 132 Tex. Cr. R. 1, 102 S. W. (2d) 209; McCuistian v. State, 132 Tex. Cr. R. 47, 102 S. W. (2d) 415; Coleman v. State, 131 Tex. Cr. R. 213, 97 S. W. (2d) 701; Kelly v. State, 131 Tex. Cr. R. 318, 98 S. W. (2d) 998; Barrington v. State, 132 Tex. Cr. R. 325, 104 S. W. (2d) 861.
It becoming necessary to reverse the judgment for the reasons stated other questions presented in appellant’s motion for rehearing will not be considered.
The motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is reversed and prosecution ordered dismissed under the present information.