CORNELIUS HILL V. STATE
No. 28,165
March 14, 1956.
March 14, 1956
Appellant‘s Motion for Rehearing Overruled May 9, 1956. Appellant‘s Second Motion for Rehearing Overruled (Without Written Opinion) June 13, 1956.
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The state having proved the finding of the whisky and gin then offered the judgment in Cause No. 5,584, dated December 15, 1953, wherein Virgil Franklin was convicted in the same court for the sale of whisky in a dry area.
Appellant‘s objection to this testimony on the ground of remoteness should have been sustained. Jackson v. State, 135 Tex. Cr. R. 140, 118 S.W. 2d 313.
The evidence as to such prior judgment of conviction was also inadmissible because appellant was not identified as the defendant in said cause.
The judgment is reversed and the cause remanded.
Dan Walton, District Attorney, Eugene Brady and Thomas D. White, Assistants District Attorney, Houston, and Leon Douglas, State‘s Attorney, Austin, for the state.
MORRISON, Presiding Judge.
The offense is the sale of whiskey in a wet area without having procured a permit from the Texas Liquor Control Board, with prior offenses of like character alleged to enhance the punishment; the punishment, one year in jail and a fine of $1,000.00.
An employee of the Texas Liquor Control Board testified that he went to a certain address in the city of Houston after midnight on the day charged in the information and there purchased from the appellant two half pints of whiskey, that he returned approximately one-half hour later and purchased still another one-half pint.
His testimony was corroborated by Police Officer Farris.
The prior convictions were established, and the appellant was identified as being the person therein convicted.
The appellant did not testify and offered no evidence in his own behalf.
Appellant contends that the court erred in admitting into evidence, over his objection, an affidavit of Coke R. Stevenson, Jr., Administrator of the Texas Liquor Control Board, in which he certifies that he is the custodian of the records of said board and that he had searched the same and found no record of a license to sell alcoholic beverages having ever been issued to the appellant.
The objection was that he was denied the right to crossexamine the witness. In Fite v. State, 158 Tex. Cr. Rep. 611, 259 S.W. 2d 198, this court held that the provisions of
Section 5 of said act provides:
“A written statement signed by an officer having the custody of an official record, or by his deputy, that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry.”
No objection was made that the terms of Section 3 of said act had not been complied with, and therefore we are not called upon to pass upon the question of surprise.
Finding no reversible error, the judgment of the trial court is affirmed.
ON APPELLANT‘S MOTION FOR REHEARING
WOODLEY, Judge.
It is now contended that the prior misdemeanor convictions alleged to enhance the punishment were not available for that purpose because they were not for offenses of like character to the presently charged offense.
The prior convictions were each for the offense of selling liquor on Sunday, in violation of
Both statutory provisions are applicable to wet areas where the sale of whisky is lawful provided that the right or privilege is granted by some provision of the Texas Liquor Control Act.
The sale of whisky in a wet area without a permit of the class required for such privilege is unlawful.
It follows that no person may exercise or enjoy the privilege of selling whisky in a wet area on Sunday, nor may he so sell without securing the required permit.
We decline to extend the rule there stated to violations of the law regulating the sale of whisky in a wet area, and hold that the offense of selling whisky on Sunday and that of selling whisky without a permit in a wet area are offenses of like character and are “convictions for the same offense” as that term is used in
Appellant‘s motion for rehearing is overruled.
DAVIDSON, Judge, dissenting:
I cannot agree to the affirmance of this conviction and therefore enter my dissent.
The primary offense charged in the information was a violation of a regulatory measure—that is, the sale of intoxicating liquor in a wet area without a license or permit (
The act there made unlawful becomes so only by the absence of a permit or license. Hence, the offense created is a regulatory measure, only—that is, the regulating of the sale of liquor where it is lawful to sell.
The prior convictions alleged were for the violation of a prohibitory measure—that is, the sale of whisky on Sunday (
Offenses involving a violation of a regulatory measure and offenses involving a violation of a prohibitory statute are entirely different, one from the other, and, therefore, are not and cannot be the same, or similar, under
It follows that the prior convictions here relied upon and used to enhance appellant‘s punishment were not for the same or similar offense as that for which appellant was then upon trial. See: Andrews v. State, 154 Tex. Cr. R. 392, 228 S.W. 2d 173; Graham v. State, 159 Tex. Cr. R. 52, 260 S.W. 2d 887; Fullylove v. State, 159 Tex. Cr. R. 120, 261 S.W. 2d 711.
The appellant‘s motion for rehearing should be granted and and the judgment of conviction reversed and the cause remanded.