McCuistian v. State

MORROW, Presiding Judge. — The conviction is for the unlawful sale of whisky in a dry area; penalty assessed at a fine of $125.00. The information alleges that the appellant unlawfully sold whisky in Brown County, which was “then and there a dry area.” Such an averment is not sufficient to comply with the law in cases such as that under consideration. In the case of Kelly v. State, 98 S. W. (2d) 998, this court held that an information charging the unlawful sale of intoxicating liquor in [48] a dry area must allege that an election was held under an order of the commissioners’ court for the purpose of determining whether the sale should be prohibited; that the said court canvassed the -election returns and declared the result; and that the result was published as required by law in force at the time of the election. See Scott v. State, 99 S. W. (2d) 920; Malchoff v. State, 99 S. W. (2d) 917; Shaffer v. State, 99 S. W. (2d) 929. For the reason stated, the judgment of the trial court is reversed and the prosecution ordered dismissed. Reversed and prosecution ordered dismissed.