On Motion for Rehearing.
Hurt, Judge.It has been repeatedly decided by this court that to authorize a conviction for a violation of the local option law, it must appear that the requisite number of notices of the election were posted, as the law requires, in the district to be affected. (Ex parte Kramer, 19 Ct. App., 123; Smith v. State, Id., 444.)
In this case, from the evidence, it might be inferred that six notices were issued by the clerk, though the evidence of the clerk is to the effect that only five were issued. One of these was posted at the court house door, which was not in the district to be affected by the election. One other notice was handed to a citizen who resided in the district, with instructions to post the same. ' He did not do this himself, but testified in the case that he gave it to his son to be posted. There is nothing beyond this to show that this notice was posted. How, giving to the evidence its utmost effect for the State, it shows that only five were sent out to be posted in the district, one having been put up at the court house. Under the rule announced at a former day the presumption which obtains, that a clerk will do, and has done Iris official duty, can not be extended to a private person, who is *357under no legal obligation to perform the duty, or task, imposed upon him.
We are of the opinion that the conviction is not warranted by the evidence. The motion for rehearing is granted, and the judgment is reversed and the cause remanded.
■Reversed and remanded.
Opinion delivered May 22, 1886.