Appellant has filed a motion for rehearing presenting only one question, and one that was not presented in appellant's brief, nor in his motion for new trial. In fact it is first suggested by him in this motion for rehearing in this court, and that is: "There is no evidence to show local option was in force in Newton County, nor was it admitted that local option was in force in Newton County." If this is true, it is strange that appellant did not raise that question in the trial of the case, and did not assign as error the part of the charge of the court wherein the court instructed the jury that prohibition was in force in Newton County. Of course, if appellant's contention, even though raised this late, is correct it would be fatal to the conviction, because this court, and no other court, can take judicial notice of those portions of this State in which local option has been adopted, but in the trial of the case it must be proven that local option has been adopted. However, in this record, we think this fact was proven in the trial of the case, and appellant's attempt at this late hour to take advantage of perhaps an inapt expression in the statement of facts showing that fact, will not be allowed. In the statement of facts agreed to by appellant's counsel, it is shown that when the State introduced in evidence the orders of the Commissioners Court showing that local option had been adopted, defendant made the following admission: "Deft. It is admitted that *Page 183 the orders pertaining to local option being in force be considered read, that is, we waive the reading of the orders."
This clearly shows that the orders were introduced in evidence, and that they showed that local option was in force in that county. In his charge the court instructed the jury: "The orders of the Commissioners Court read before you establishes that the law prohibiting the sale of intoxicating liquors in Newton County, Texas, is in force, and that said law is now and was at the time of the alleged sales in force and that it was unlawful to make sales, if any were made, as alleged."
As stated herein before, appellant in his motion for new trial, made no complaint of this paragraph of the court's charge, and in said motion there is no allegation that this fact had not been proven, and in the brief filed in this court there was no such contention, and it is first attempted to be raised in a motion for rehearing in this court.
Defendant having made the admission and statement the record shows he made in the court below, will not now be heard to complain that the record is not more explicit.
The motion for rehearing is overruled.
Overruled.