No. 24384 | Tex. Crim. App. | Jun 1, 1949
Lead Opinion
The offense is possession of whiskey for the purpose of sale in a dry area. The punishment assessed is a fine of one thousand dollars.
Appellant was charged by complaint and information with the primary offense of possessing whiskey for the purpose of sale in a dry area. For the purpose of enhancing the punishment, the state in two separate paragraphs charged two prior convictions for offenses of like character.
The record reflects that some peace officers, armed with a search warrant, went to appellant’s residence and searched his house and premises. The search resulted in the discovery of five “fifths” and three pints of Seagram’s Seven Crown whiskey and two “fifths” of gin. That Brown County was a dry area was definitely proven. Appellant did not testify.
The court, in his charge, instructed the jury that if they found the appellant guilty of the primary offense of possessing whiskey in a dry area for the purpose of sale and they further found that he had been theretofore twice convicted of offenses of like character, that then they would assess his punishment at not less than one hundred dollars nor more than four thousand dollars, or by both fine and imprisonment. The jury found him guilty and assessed his punishment as above stated.
Before the court submitted his charge to the jury, appellant addressed certain objections thereto and requested certain special charges,' some of which were given by the court and others were refused. Among appellant’s objections to the court’s charge were the following: “Said information and complaint does not show how said previous convictions arc alike or like the offense with which he is charged in this information.” In addition to the objection aforesaid, he requested the following special charge, which the court declined to give, to-wit: “In this case the court has permitted to be introduced in evidence before you certain testimony to show that the defendant, Neil McClain, has been heretofore convicted of other violations of the law, and you are hereby instructed that under the allegations of the complaint and information on which the defendant is being tried, that evidence of such other violations of the law are improperly
In view of the disposition we are making of this case, we do not deem it necessary to discuss his bill of exception No. 2.
For the error herein pointed out, the judgment of the trial court is reversed and the cause is remanded.
Opinion approved by the Court.
Dissenting Opinion
(dissenting).
My brethren have agreed to a reversal of this cause because of a claimed defect in the complaint and information herein in the second count thereof in which a prior conviction is set forth.
“And that prior to the commission of the aforesaid offense by the said Neil McClain, to-wit, on the 31st day of October, 1947, in the County Court of Brown County, Texas, the said Neil McClain was duly and legally convicted in said last named court of an offense of like character as that hereinbefore charged against him in this cause, upon a complaint and information in Cause 9173 then legally pending in said last named court, and of which the said court had jurisdiction.”
It seems to be plain to the writer that in the above phrase, “legally convicted in said last named court of an offense of like character as that hereinbefore charged, against him in this cause,” could only refer to the one hereinbefore charged against him, to-wit: “possess for the purpose of sale an alcoholic beverage, to-wit, whiskey.” My brethren, however, say such was not sufficient to show what kind of an offense of like character was charged against this man in the case prior to the present one.
We have often held that it was not necessary to charge a previous conviction with the same particularity when endeavoring to enhance the penalty as was required of the case on trial, but that a general allegation that such older case was one of like character, although the statute requires such older case to be the “same offense”. We have often held that such phrase “same offense” means only one of like character. See Kinney v. State, 45 Tex. Crim. 500" court="Tex. Crim. App." date_filed="1904-01-13" href="https://app.midpage.ai/document/kinney-v-state-3968521?utm_source=webapp" opinion_id="3968521">45 Tex. Cr. R. 500, 78 S. W. 225, 79 S. W. 570; Muckenfuss v. State, 55 Tex. Crim. 216" court="Tex. Crim. App." date_filed="1909-02-03" href="https://app.midpage.ai/document/muckenfuss-v-state-3917528?utm_source=webapp" opinion_id="3917528">55 Tex. Cr. R. 216, 117 S. W. 583; Neece v. State, 62 Tex. Crim. 378" court="Tex. Crim. App." date_filed="1911-05-17" href="https://app.midpage.ai/document/neece-v-state-3960237?utm_source=webapp" opinion_id="3960237">62 Tex. Cr. R. 378, 137 S. W. 919; Lenore v. State, 137 Tex. Crim. 417" court="Tex. Crim. App." date_filed="1939-05-31" href="https://app.midpage.ai/document/lenore-v-state-3945689?utm_source=webapp" opinion_id="3945689">137 Tex. Cr. R. 417, 129 S. W. (2d) 657; Harbert v. State, 136 Tex. Crim. 301" court="Tex. Crim. App." date_filed="1939-02-15" href="https://app.midpage.ai/document/harbert-v-state-3952349?utm_source=webapp" opinion_id="3952349">136 Tex. Cr. R. 301; 124 S.W.2d 1005" court="Tex. Crim. App." date_filed="1939-02-15" href="https://app.midpage.ai/document/johnson-v-state-3930565?utm_source=webapp" opinion_id="3930565">124 S. W. (2d) 1005. a
In alleging prior convictions for the purpose of enhancing the punishment, the particularity in pleading demanded by the present offense does not apply. See 12 Tex. Jur. p. 796, sec. 405, and cases there cited.
Regardless of the above reasoning, the writer is of the opinion that the allegation of the prior offense, complained of herein, is sufficient in itself to allege what said prior offense was by
The writer is cognizant of the holding in Waltrip v. State, 134 Tex. Cr. R. 202, 114 S. W. (2d) 555, in which both he and Presiding Judge Hawkins held the identical language herein offered to be relied upon to be insufficient to give notice of what the prior offense of like characted consisted, but upon mature reflection, I am convinced that we were both in error in such holding, and such case should no longer govern as a safe precedent.
Believing it never too late to be right, I voice the belief that this complained of allegation was sufficient to show the character of the prior conviction, and I desire to enter my dissent to the majority opinion of my brethren herein holding to the contrary.