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Penny v. the State

Court of Criminal Appeals of Texas
Apr 25, 1923
250 S.W. 686 (Tex. Crim. App. 1923)

Opinion

No. 7592.

Decided April 25. 1923.

Manufacturing Intoxicating Liquor — Indictment — Negative Allegations.

Where the indictment charged that the offense took place on October 11, 1921, it was necessary, in the trial of unlawful manufacture of intoxicating liquor, that the indictment negative the exceptions contained in the statute and the Constitution. Following Robert v. State, 90 Tex.Crim. Rep..

Appeal from the District Court of Wood. Tried below before the Hon. J.R. Warren.

Appeal from the unlawful manufacture of intoxicating liquor; penalty, four years imprisonment in the penitentiary.

The opinion states the case.

Jones and Jones, and A.J. Britton for appellant.

R.G. Storey, Assistant Attorney General, for the State.


Conviction is for the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of four years.

The indictment charges that the offense took place on October 11, 1921. The State's evidence tends to support that averment. At that time, however, it was necessary, under Chap. 78, Acts of the thirty-sixth Legislature, 2nd Called Session, that the indictment negative the exceptions contained in the statute and in the Constitution. See Robert v. State, 90 Tex.Crim. Rep.. The statute was subsequently amended rendering such averment unnecessary. The Assistant Attorney General concedes that the indictment in the instant case is defective in failing to make the necessary allegations.

The judgment is reversed and the prosecution ordered dismissed.

Dismissed.


Summaries of

Penny v. the State

Court of Criminal Appeals of Texas
Apr 25, 1923
250 S.W. 686 (Tex. Crim. App. 1923)
Case details for

Penny v. the State

Case Details

Full title:WILL PENNY v. THE STATE

Court:Court of Criminal Appeals of Texas

Date published: Apr 25, 1923

Citations

250 S.W. 686 (Tex. Crim. App. 1923)
250 S.W. 686