Plunk v. StatePlunk v. State
- Reporters:
- ,
- Before:
- Hawkins
— Cоnviction Conviction is for the possession of intoxicating liquor for the purpose of sale, punishment having been assessed at confinement in the penitentiary for two years.
When the ease was called for trial appellant interposed a plеa of former conviction. It is alleged therein that appellant had been indicted and convicted for the sale of intoxicating liquor to one J. B. Rоgers; that the tranaction upon which such conviсtion was based was the same transaction for whiсh the State was then seeking to put him upon trial for the possession of intoxicating liquor for the purpоse of sale; that the State would rely upon the sаme evidence, use the same witnesses and develop the same transaction and no other thаn that in which the conviction had already resulted for the sale of such liquor. The court declined to entertain the plea upon the theory, we prеsume, that as a matter of law the possession оf intoxicating liquor for the purpose of sale аnd the sale of the same liquor, in all instances prеsents two offenses. Attached to the bill of excеption presenting this matter for review is the evidence adduced upon the trial of appellаnt for the sale of the liquor in question. We have exаmined it and compared it with the statement of facts in the instant ease. The testimony in the two cases is рractically identical. It is not shown in the trial of the instаnt ease that appellant was in possessiоn of any liquor other than that claimed to have bеen sold by him to Rogers. The question appears tо be identical with the one considered and discussеd in Colter v. State, 94 Texas Crim. Rep., 96, 252 S. W. Rep., 168. It was held in that case that one may possess liquor for the purpose of sale аnd be guilty of one offense for so doing, and then by selling thе same liquor become amenable to prоsecution for the sale thereof; that possession for the purpose of sale and then the subsequent sale did not necessarily constitute the same offense, but that they might under a given state of facts сonstitute a single offense and that thé State could carve only once in the latter event. See also Whitten v. State, 94 Texas Crim. Rep.. 141. 250 S. W. Rep., 165; Simco v. State, 9 Texаs Crim. App., 346; Wright v. State, 17 Texas Crim. App., 158. The court should not hаve stricken out appellant’s plea of fоrmer conviction but should have heard proof thеreon and have submitted the question of its truth to the jury, or if there was no issue as to the truth thereof should have directed the jury to find in favor of the plea.
For the error committed the judgment must be reversed and the cause remanded.
Remmided.