Appellant was convicted for failing to obtain necessary license authorizing him to sell intoxicants in local option territory. He was then placed on trial under an information charging him with violating the local option law in the same territory. In bar of the second prosecution, he pleaded the conviction in the former case. The plea is in the usual form, and sets up the testimony as being identical in both cases. This plea, on demurrer of the State, was stricken out by the trial court, and appellant reserved an exception. At our Dallas term the judgment in this case was affirmed. The record failed to contain the plea of jeopardy. Motion for rehearing was made, and certiorari awarded to perfect the record by inserting said plea of jeopardy. This has been done, and the case submitted on motion for rehearing. My bretheren, without written opinion, have overruled this motion for rehearing; thereby holding the plea not well taken. The demurrer, of course, admits the truth of the facts set up in the plea; and, in sustaining the trial court in striking out the demurrer, my brethren have necessarily held that both convictions are and can be sustained by the same facts. To this I can not agree. It is my opinion that the plea should have been sustained. I *Page 383 deem it unnecessary to cite authorities. To hold otherwise would be to set at naught the constitutional guarantee granting immunity from a second prosecution for the same criminal act, and would permit many convictions for one act. While local option is in force the sales of intoxicants are absolutely prohibited until the necessary license has been obtained. It is made by the statute itself a prerequisite to selling intoxicants in local option territory. See the matter discussed in Watson v. State (decided at present term), 57 S.W. Rep., 101, and authorities there cited. The rehearing should have been granted and the judgment reversed.
[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]