Opinion
No. 3086.
Decided January 11, 1905.
Gaming — Indictment — Cumulative Punishment.
See opinion for indictment held insufficient to sustain a conviction authorizing cumulative punishment under article 1014, Penal Code.
Appeal from the County Court of Tarrant. Tried below before Hon. R.F. Milam.
Appeal from a conviction of a misdemeanor; penalty, a fine of $200 and twenty days confinement in jail.
The opinion states the case.
No brief for appellant.
Howard Martin, Assistant Attorney-General, for the State.
The punishment of appellant was fixed at a fine of $200 and twenty days confinement in the county jail, under an indictment containing two counts charging substantially (1) that he "did then and there unlawfully keep and exhibit for the purpose of gaming a gaming table and bank," and (2) "that one Kid Kinney, heretofore and previous to the commission of the offense herein before charged against him, in the county court of Tarrant County, Texas, which court then and there had jurisdiction to try said cause, in cause No. 24405, 24259, 24260, being three cases and offense styled the State of Texas v. Kid Kinney, said cause then and there legally pending by informations, the said Kid Kinney was then and there legally convicted of the same offense and an offense of the same nature as the one hereinbefore charged against him, on to wit: the 5th day of September, A.D., 1903, contrary to the form of the statute," etc.
This is a companion case to that of Kinney v. State, 79 S.W. Rep., 570, where it was held that the second count above was defective. While there is no statement of facts in this record, yet we are bound to conclude, from the punishment assessed by the jury, that the trial court charged the jury article 1014, Penal Code, authorizing cumulative punishment, and the conviction was had under this count. Before this could be done a valid indictment in this particular should have been filed as held in Kinney v. State, supra. The first count in this indictment is good. The judgment is accordingly reversed and the cause remanded.
Reversed and remanded.