Tompkins v. State

Court of Criminal Appeals of Texas
Tompkins v. State, 90 S.W. 1019 (Tex. Crim. App. 1905)
49 Tex. Crim. 154; 1905 Tex. Crim. App. LEXIS 367
Davidson

Tompkins v. State

Opinion of the Court

DAVIDSON, Presiding Judge.

Appellant was convicted of selling intoxicating liquors to a minor. The evidence discloses that he had been previously convicted for violating the local option law on the same facts: the identical transaction; and that he had never sold intoxicating liquors but the one time to the party named as a minor in this case. When this case was called for trial, he set up his plea of jeopardy on the conviction in the former case. On demurrer this was stricken out. This was error. The authorities are so numerous sustaining this proposition we deem it unnecessary to cite them. Where the local option law goes into effect, it supersedes all other laws involving the sale of liquor within the prohibited territory. This would include the sale to minors. Atkinson v. State, 46 Texas Crim. Rep., 229; 9 Texas Ct. Rep., 756. Even if there had not been a prior conviction for violating the local option law, this conviction could not stand. Why ? Because the local option law was in effect, and the *156 complaint and information in this case does not charge a violation of the local option law, but declares simply upon a sale to a minor. If the complaint had charged a violation of the local option law, the mere fact that it was further alleged that the purchaser was a minor would not render the information vicious, but under no event can a party be convicted under an information simply charging a sale to a minor where local option is in force. The violation is of the local option law, and not of the statute prohibiting sales to minors. In Stephens v. State, 13 Texas Ct. Rep., 443, it was held that the local option law did not infringe on the statute denouncing an offense against a party who gave intoxicants to a minor; but that did not involve the question of sale, and it was held there was no conflict between the statutes in regard to giving intoxicants to minors and sales under the local option law, inasmuch as the local option law only prohibits and can only prohibit sales. The judgment is reversed and the cause remanded.

Reversed and remanded.

Reference

Full Case Name
John Tompkins v. the State
Status
Published