Opinion
No. 25543.
December 5, 1951.
Appeal from the County Court of Stonewall County, H. H. Shadle, J.
Glover Engledow, Jayton, for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
Unlawfully storing whiskey in a dry area is the offense; the punishment, six months in jail.
The complaint upon which the information was presented contained one count which charged, in effect, that appellant unlawfully stored whisky in a dry area. No reference was therein made, or alleged, to prior convictions for offenses of like characted. The information upon which this case was tried and submitted to the jury, and upon which the jury returned its verdict finding appellant guilty as charged, contained a count charging two prior convictions for offenses of like character.
The complaint, not alleging prior convictions, would not authorize an information alleging prior convictions, because an information must be based upon a complaint and limited by the allegations of the complaint. Art. 415, C.C.P. The prior convictions, not having been alleged in the complaint, should not have been submitted to the jury.
In the event of another trial, doubt is expressed as to the sufficiency of the evidence to support the conviction, especially in view of the fact that the prima-facie-evidence statute, Art. 666-23a, Sec. (2), Vernon's P.C., relates only to possessing liquor for the purpose of sale.
The judgment is reversed and the cause remanded.
Opinion approved by the Court.