Appellant was convicted of violating the local option law, and his punishment assessed at one year in the penitentiary.
After the election is said to have been held the Commissioners Court met to declare the result of the election. The order declaring the result is as follows: "October 8, 1910. Ordered by the court, that the election for local option for precinct No. 5, the same was this day tabulated by the court, as follows, towit: for prohibition, 105; against prohibition, none. Said election occurred September 24, 1910." The above is recited from the bill of exceptions. This is all of the order shown by the bill of exceptions and statement of facts both, with reference to the order of the court declaring the result of the election. When this was offered various and sundry and divers objections were urged to its introduction, which we deem unnecessary to state. The objection covered every possible phase. The statute, article 5721, Revised Civil Statutes, reads as follows: "Said court shall hold a special session on the eleventh day after the holding of said election, or as soon thereafter as practicable, for the purpose of opening the polls and counting the votes; and, if a majority of the votes are `For prohibition,' said court shall immediately make an order declaring the result of said vote, and absolutely prohibiting the sale of intoxicating liquors within the prescribed limits, except for the purposes and under the regulations specified in this title, until such time as the qualified voters therein may at a legal election held for that purpose by a majority vote decide otherwise; and the order thus made shall be held to be prima facie evidence that all the provisions of law have been complied with in giving notice of and holding said election, and in counting and returning the votes and declaring the result thereof." Then follows article 5722, which provides that the order, after properly being entered, shall be published for four successive weeks in some newspaper, or in the absence of a newspaper in the county, then by posting copies for said length of time. An inspection of article 5721 shows there was no order entered in this case declaring the result and putting prohibition in force as provided by the statute. There is simply a tabulation or statement of the votes as being favorable to prohibition. There was no order of the court following this as the statute requires. The objections should have been sustained, and the order excluded.
Another bill was reserved to the publication by the judge, among other things, because there had been no legally declared result, and that the publication was not authorized until the proper order had been entered declaring the result. It is unnecessary to discuss this question. The basis of this publication was the proper order declaring the result of the election. For authorities on the first proposition see Branch's Crim. Law, sec. 550, and the statute above quoted. The contest provided by article 5728, is only authorized after the proper order declaring the result has been made of record, and the election has been declared to be in force by the proper authorities, therefore, that question can not arise in the case. The time for contesting the election had not arisen, and that phase of the law can not be applied in this case. There is nothing to *Page 541 contest until the result has been declared and proper order entered as contemplated and required by the statute. The trial judge seems to have taken the same view of it as shown by the bill of exceptions to the effect that when objection was made to the introduction of the order undertaking to declare the result of the election, the court stated from the bench he really believed the exception to the introduction of the order was well taken, yet he permitted it to go to the jury. We are of opinion that the trial judge was correct in stating that the law was not in effect, and instead of permitting it to go to the jury, he should have excluded it.
Another bill recites that when the State introduced the witness Welborne, who was indicted also for making the same sale of liquor for which defendant was being prosecuted, and which indictment was then pending on the court docket, the district attorney stated, in the presence and hearing of the jury, as follows: "I am going to dismiss the case against this man because I don't believe Mr. Welborne sold any whisky. I have looked into and I don't believe he sold any whisky." Exception was taken to this remark. We are of opinion that this should not have occurred in the presence and hearing of the jury. Welborne was indicted for selling the same whisky, and the belief of the district attorney in dismissing the case against him, when he tendered him as a witness, should not have gone to the jury. The belief of the district attorney, or his action in dismissing this case, was not a matter for the jury, but for the court alone, and if the district attorney saw proper to dismiss the prosecution against Welborne, it should have been done in writing and his reasons stated in writing subject to the approval of the court. If the court approved it, then the indictment or prosecution could have been dismissed. See White's Ann. Penal Code, secs. 37, 630 and 709. These articles are the same in the Revised Statutes of 1911; the numbering, however, is different from what it is in White's Ann. Penal Code. Upon another trial this matter should not occur.
Another bill recites that M.C. Stallcup, justice of the peace in precinct No. 5, in which it is alleged this sale occurred, was called as a witness for the State. While upon the stand he was asked the question: "Do you know what defendant's reputation is in the community in which he lives, on the question of whether or not he is a bootlegger of liquor," to which the witness answered: "I have heard that he sold whisky before this trouble. I heard a year or two back that Jessie Sasser was selling whisky; those people told me they believed he was selling whisky." Objection was urged to this testimony. On the question of reputation we do not believe this testimony was admissible as to what people told witness they believed about it. What people believed about his selling whisky would not be admissible against appellant. We are of opinion this testimony, under the circumstances and manner detailed in this bill of exceptions, should not have been permitted to go to the jury. In view of the fact that he was charged with selling whisky what the people believed about his being a bootlegger or was selling whisky, may have influenced the jury to determine this question adversely to appellant. *Page 542 Matters of that sort become more or less important, according to the facts of the case. Appellant's evidence placed it beyond his power to have been guilty. He proved a clear case of alibi by several witnesses, who show that he could not have been guilty. The sale occurred at night, and he had to be identified at night, and he denies his presence and the entire transaction. Welborne and two or three others had some whisky independent of the bottle supposed to have been bought from defendant, and with which they became very much intoxicated, and spent the night in reveling. As this record is presented, we do not believe that this conviction ought to stand, and that these matters discussed are erroneous.
The judgment is reversed and the cause remanded.
Reversed and remanded.
[Rehearing denied May 13, 1914. — Reporter.]