ON MOTION FOR REHEARING.
GRAVES, Presiding Judge.Appellant has filed an extensive motion for rehearing herein in which he challenges our original opinion, and among other things, he reiterates the proposition that the testimony was insufficient to show that the witness purchased whisky from the appellant as set forth, in the information.
*575We quote from the testimony of the witness, Jurek, an inspector for the. Texas Liquor Control Board, as follows:
"I asked Jesse (Mr. Musgrove) if he had any Canadian Club Whiskey, and he said, ‘No, that he just had two brands, Hill & Hill and Sunnybrook’ and I asked him how much his Sunny-brook was a pint and he said, ‘$4.50’ so I bought two pints of Sunnybrook from him.”
We quote from the testimony as follows:
“Q. (Mr. Lilley handing or exhibiting two bottles of liquor labeled ‘Sunnybrook’ whiskey (2 pint bottles) one full with the seal unbroken and the other about 2/3rds full with the seal broken) continuing his examination of the witness, inquired:
“Is this the whiskey you bought from Jesse Musgrove on May 8th, 1953. A. Yes, sir.
“Mr. Lilly: We offer these two pints of whiskey in evidence.”
Again, on cross-examination, it was shown that Mr. Jurek did not drink or taste any of the stuff in these bottles, but relative to the missing portion in one of the bottles, he made the following statement:
“A. I gave that to a fellow I picked up down there and he drank it; I had promised him a drink if he would help me ferret out some bootleggers in that area; he seemed to know a good deal about them.
“Q. Who is this mysterious fellow that drank the missing whiskey; where does he live? A. I don’t know who he was nor where he lives; you know it is not much trouble to pick up a barfly; all I wanted was some information that would help me apprehend some bootleggers, and he looked like and was the type who could furnish some information.”
From the testimony we further quote:
“Q. Then you don’t know and can’t swear that it is whiskey, or anything else, can you? A. Well, no sir, naturally I couldn’t swear it was whiskey, but I have a pretty good idea, since it is both labeled in big plain print ‘Sunnybrook Whiskey’ and has a U. S. Government Tax Stamp on it.”
Under these facts we are of the opinion that same are sufficient to show that the liquid purchased by the witness from the *576appellant was whisky. See Jones v. State, our No. 26,701 (page 399, this volume), 264 S. W. (2d) 106.
In the case of Bouldin v. State, 145 Tex. Cr. Rep. 413, 168 S.W. (2d) 868, we said:
“In the case of Thompson v. State, 115 Tex. Cr. R. 519, 28 S.W. 2d. 161. 162, a similar state of facts was presented to us. In that case, as in this, the prosecuting witness asked the accused for whisky, and the accused agreed to sell some whisky, and soon returned with something in a bottle and received money therefor. In neither case was the liquid shown to have been tasted by anyone. In the Thompson case we said: ‘We regard the effect of this testimony as proof of an admission on the part of appellant that the liquid was whisky.’ Again therein we said: ‘Underhill on Criminal Ev. sec. 728, cites Frazier v. State, 27 Ga. App. 261, 107 S.E. 896, as holding that liquor called for, delivered, and paid for as whisky, might be inferred to be whisky in the absence of evidence to the contrary. We think this correct. See Parker v. State, 39 Tex. Cr. R. 262, 45 S.W. 812; Gaunce v. State, 109 Tex. Cr. R. 448, 5 S.W. 2d. 154; Burrell v. State, 111 Tex. Cr. R. 149, 11 S.W. 2d. 794; Adams v. State, 111 Tex. Cr. R. 197, 11 S.W. 2d 518; Beltz v. State, 112 Tex. Cr. R. 419, 16 S.W. 2d 828; Friedman v. United States, (6 Cir.) 13 F. 2d. 632.”
We next have the proposition raised by the appellant relative to the election in San Jacinto County on March 10, 1917, in which the provisions of the local option law were voted upon by the people and resulted in the dry status of that county. Objection is made relative to the introduction of such testimony because of the fact that after searching the record the petition of the voters which requested the commissioners’ court to order a prohibition election was not found. However, the order itself, calling the election, was introduced in evidence from the minutes of the commissioners’ court which evidenced the fact that the petition of B. F. Johnson and 250 other legally qualified voters of said county was received by that court and such order found that said petition was signed by 250 legally qualified voters of said county and that the same was in due and proper form. The commissioners’ court therefore ordered that the petition be granted and an election was ordered to be held in San Jacinto County on the 10th day of March, 1917, by the qualified voters of the county to determine whether or not the sale of intoxicating liquors should be prohibited in said county and setting forth the several voting precincts, etc.
*577This order was objected to mainly because they were unable to find the petition itself that was evidently presented to the commissioners’ court and caused them to call for the election.
It is also shown that the election was thus held and that the county commissioners in due time opened the ballots and counted the votes cast in said election and found that there was a majority vote therein in favor of the prohibition of such sale and the same was declared to have resulted in favor of such prohibition; that said commissioners’ court thereupon entered its order prohibiting the sale of intoxicating -liquors within the limits of San Jacinto County; and such order was published in a newspaper in the county for four consecutive weeks, and the affidavit of the newspaper publishers relative to such publication was shown.
Under the circumstances, we think that there having been no election shown to have been held thereafter prior to the . adoption of Article 20, Section 16, of the State Constitution, the provision of such Constitution would govern relative to the dry status of a county prior to the time of the state-wide prohibition going into effect as set forth in said Section 20 of Article 16.
It is shown from such Section 20 of Article 16 that upon its adoption by the state, effectuating the repeal of the statewide prohibition law, that in all counties, justice precincts, incorporated towns and cities where the sale of intoxicating liquors had been prohibited by local option elections, prior thereto under the laws of the State of Texas in force at the time of the taking effect of this repeal, it should continue to be unlawful to manufacture, sell, barter or exchange any spiritous, vinous or malt liquors therein for beverage purposes unless and until the majority of the qualified voters should change such conditions by a proper election. In other words, the repeal of the constitutional amendment prohibiting the sale of intoxicating liquors in the state would restore to each county or subdivision thereof its former status relative to the sale of intoxicating liquors as it existed before the adoption of the amendment.
See Rockholt v. State, 136 Tex. Cr. R. 479, 126 S.W. (2d) 488, in which it was held:
“Upon the repeal of the amendment to our Constitution (sec. 20, Art. 16, Vernon’s Ann. St. Const.) prohibiting the sale, etc., *578of intoxicating liquors in this state, its restored to each county or subdivision thereof its former status relative to prohibiting the sale of intoxicating liquor as it existed before the adoption of the Constitutional Amendment.”
It seems that this election was held in 1917, and under the statute, this attack relative to the election itself comes too late. The attack should have been made within sixty days after the taking effect of Senate Bill No. 31, Chapter VIII of the General Laws of the 30th Legislature, First Called Session, p. 447, as provided therein, failing which the law conclusively presumes that the election as held and the results as therein declared are in all respects valid and binding on the courts. See Art. 666-40a, Vernon’s Ann. P.C., Blaine v. State, 139 Tex. Cr. R. 187, 139 S.W. (2d) 792; Crutchfield v. State, 144 Tex. Cr. R. 291, 162 S.W. (2d) 699; Wilson v. State, 107 S.W. 818; Kirksey v. State, 61 Tex. Cr. R. 298, 135 S.W. 124.
A further question raised by the appellant relates to the argument of the county attorney in his address to the jury in which it is claimed that he violated Art. 710, C.C.P., when, among other things, he said:
“Gentlemen, you have heard the evidence of Mr. Jurek, and I haven’t heard anybody dispute it.”
It is claimed by the appellant that this was a direct reference on the part of the county attorney to the appellant’s failure to testify. We call attention to the fact that the bill does not recite that there were no other persons present at the time of the alleged sale who might have testified concerning it, nor do we find in the bill any recitation that the appellant did not testify.
It is upon the insufficiency of the bill of exceptions, and not upon its merits that we hold that no reversible error is shown. See Gribble v. State, 133 Tex. Cr. R. 457, 111 S.W. (2d) 1108; Easterwood v. State, 132 Tex. Cr. R. 9, 101 S.W. (2d) 576; Thacker v. State, 131 Tex. Cr. R. 664; 101 S.W. (2d) 247; Brawley v. State, 114 Tex. Cr. R. 605, 26 S.W. (2d) 244; Tillman v. State, 88 Tex. Cr. R. 10, 225 S.W. 165; Rodele v. State, 158 Tex. Cr. Rep. 167, 254 S.W. (2d) 122.
Article 667, C.C.P., as amended by the 53rd Legislature, provides that where the argument is manifestly improper, or violates some mandatory provision, or some new fact is thereby injected into the case, it shall not be necessary that the bill *579negative any fact by which the argument complained of may have been authorized. In the absence of a showing in the bill that the defendant did not testify in the case, the remarks complained of were not “manifestly improper,” did not violate the statute, nor inject a new fact into the case.
It follows that we must hold that the amendment of the statute made no change in the requirements that the bill of exception must show the fact that the defendant did not testify, as held in the cases above cited.
Appellant further complains because he was not given a charge on his affirmative defense that was raised by the failure to have the. witnesses to testify as to their knowledge of the intoxicating quality of the liquor. This matter finds itself present in the testimony, and its weakness, if any, and would not rise to the dignity of an affirmative defense. It is embodied in the question of appellant’s guilt or innocence as presented to the jury. See Gilmore v. State, 158 Tex. Cr. Rep. 534, 257 S.W. (2d) 300.
We have been favored with many citations and much written argument relative to this matter. We have read the same and have considered each separate question raised by the appellant, and find no error evident in the trial hereof.
In our opinion, this case has been properly tried, and the motion for rehearing is therefore overruled.