Opinion
No. 24227.
January 26, 1949.
1. — Complaint and Information — Defective — Allegations of Prior Conviction.
In prosecution for possessing whisky for the purpose of sale in a dry area, the complaint and information is fatally defective, where former convictions are alleged for purposes of enhancing punishment if it is merely alleged, in referring to such former convictions, that they are "of like character" and make no further description of such prior offenses.
2. — Evidence — Former Convictions — Reversible Error.
Under Art. 61 P. C., permitting increased penalty on subsequent convictions for a like offense, evidence of former convictions should not have been admitted where complaint and information did not describe such former convictions further than to allege appellant had been convicted of "an offense of like character," and it was reversible error to refuse a special charge instructing the jury that all evidence relative to such former convictions was withdrawn from jury's consideration.
3. — Charge — Increased Penalty — Former Convictions.
Court erred in instructing jury, permitting increased penalty, when complaint and information merely alleged with reference to prior offenses that appellant had been convicted of an offense "of like character" and no further description of such prior offenses was made.
Intoxicating liquor. Appeal from county court of Brown County; penalty, confinement in the county jail for two years and a fine of $1,500.
Hon. A. E. Wilson, Judge Presiding.
Reversed and remanded.
Gib Callaway, Brownwood, for appellant.
Ernest S. Goens, State's Attorney, Austin, for the state.
Conviction is for possessing whiskey for the purpose of sale in dry area, punishment assessed at two years' imprisonment in county jail and a fine of $1,500.00.
By sufficient averments in the complaint and information it was charged that appellant possessed for the purpose of sale in Brown County, Texas, whiskey, and that Brown County was dry area. The pleader then, as a basis for increased punishment, undertook to allege two former convictions in said county for possessing whiskey for the purpose of sale. The averment as to the first prior conviction was that on the 15th day of February, 1947, appellant had been convicted in Brown County of "an offense of like character" as the present offense charged; and in the same language charged the second prior conviction. No further description of such prior offenses appears in the state's pleadings.
No motion to quash or suppress that portion of the information and complaint was urged, but appellant objected to the court's instruction to the jury permitting the increased penalty under the provision of Art. 61 P. C., on the ground that the state's pleading was wholly insufficient to authorize such an instruction. Appellant further objected to the charge because it did not withdraw from the jury all evidence regarding the prior convictions, and requested a special charge to that effect. The following cases support appellant's contention. Waltrip v. State, 134 Tex.Crim. Rep., 114 S.W.2d 555; Walker v. State, 138 Tex.Crim. R., 135 S.W.2d 498; Stover v. State, 145 Tex.Crim. R., 168 S.W.2d 871.
Appellant further contends that the averments as to prior convictions are defective in other particulars than those above discussed, in that they do not accord with the holdings of the court in Ellis v. State, 134 Tex.Crim. R., 115 S.W.2d 660; 12 Tex. Jur. p. 796; Childress v. State, 134 Tex. Crim. 504, 116 S.W.2d 396; Mullins v. State, 140 Tex.Crim. R., 144 S.W.2d 565. Comparison of the pleadings in the present case with those considered in the cases referred to will disclose the defects.
For the errors discussed the judgment is reversed and the cause remanded.