The opinion
ON appellant’s motion for rehearing.
BEAUCHAMP, Judge.
It was noted in the original opinion that the minutes of the commissioners’ court dated January 2, 1936, called for an election in Justice Precinct No. 1 “to determine whether or not the sale of liquor shall be legalized” in said precinct. The effect of this language and of the minutes read in evidence did not impress us on original hearing. Neither the oral argument nor the written brief called our attention to the language and we failed to note the distinction between an election to prohibit the sale of liquor and one to legalize the sale of liquor.
In considering the motion for rehearing we discover that the proof in this case which the state was required to make, that Precinct No. 1 of Tom Green County was a dry area, was made by introducing the record of an election which failed to legalize the sale of liquors in this area. We would naturally think that there had been, at some time past, an election which resulted in prohibiting the sale of intoxicating liquor in this precinct, but we cannot assume from a mere circumstance that such was true. The record contains no evidence whatsoever of that election upon which the state must rely. Attention is called to the complaint which alleges the date of the election in January, 1936. In all probability there is error in the complaint and it would not authorize admission of the evidence of an election at some other date.
Appellant’s motion for rehearing is granted and the judgment of the trial court is now reversed and the cause is remanded.