On May 26, 1910, information and complaint were properly filed against the appellant charging him with unlawfully selling intoxicating liquor to one Damon in justice precinct No. 7 of McLennan County, after prohibition had therein been properly carried, declared and published. He was tried and convicted June 9, 1910, and his punishment fixed at a fine of $100 and twenty days in jail.
The court at which he was tried convened on May 2, 1910, and adjourned June 18, 1910. The purported statement of facts and bills of exception in this case were filed July 5, 1910. The record shows no order entered authorizing the statement of facts or bills of exception to be filed after term time. The Assistant Attorney-General has made a motion to strike them out on that account. Under the long and uniform holding of this court the said motion must be sustained and the purported statement of facts and the bills of exception stricken out. Misso v. State,61 Tex. Crim. 241, 135 S.W. 1173; Blackshire v. State,33 Tex. Crim. 160; Dement v. State, 39 Tex.Crim. Rep.; Williams v. State, 35 Tex.Crim. Rep.; Irby v. State,34 Tex. Crim. 283; Mosher v. State, 62 Tex.Crim. Rep., 136 S.W. Rep., 467; Griffin v. State, 62 Tex.Crim. Rep., 136 S.W. Rep., 778; Moore v. State, 62 Tex.Crim. Rep.,136 S.W. 1067; Gentry v. State, 137 S.W. Rep., 696.
No question raised by the bills of exception on the introduction or exclusion of testimony can, therefore, be considered by us.
There are two questions, however, raised by the motion of the appellant to quash the information and complaint and to arrest the judgment which it is necessary for us to decide. The first is, appellant contends that the Vagrancy Act repeals the Prohibition Act under which appellant was prosecuted. This question was fully discussed and decided against appellant in the case of Parshall v. State, 62 Tex.Crim. Rep.,138 S.W. 759.
The other question is, appellant contends that the Act of April 24, 1909, p. 356, making it a felony to unlawfully sell intoxicating liquors in prohibition territory, repealed the old article 402 of the Penal Code, which made such sale a misdemeanor only. *Page 511
In the case of Lewis v. State, 58 Tex.Crim. Rep., and some cases since that decision following it, this court held that said Act of 1909 did not repeal said article 402, because it was not the intention of the Legislature that the felony statute should apply where the elections were held putting prohibition in effect before the Act of 1909. Since the Thirty-Second Legislature, in passing the revised Criminal Code, had distinctly, in the new revised Code, article 597, enacted the effect of the decision in the Lewis case whereby it is made a misdemeanor only to illegally sell intoxicating liquors in prohibition territory where the election was held prior to the Act of 1909, and a felony in such territory where elections are held since then, we are constrained to hold that appellant's contention is not correct.
The writer is of the opinion that the Legislature has the power and authority to change the penalty whether prohibition has been put in force by an election held prior or subsequent to the enactment of the law, if the legislative enactment clearly shows such intent by the Legislature. And as he understands the Constitution, he would not be bound by the Lewis case, supra, or any case subsequently following it, if the Legislature should clearly enact otherwise.
There being no reversible error pointed out, the judgment will be affirmed.
Affirmed.