Cooper v. State , 25 Tex. Ct. App. 530 ( 1888 )

Hurt, Judge.

Appellant was convicted for carrying a gun on a day of election, during the hours the polls were open, within one-half mile of the voting place. He, by counsel, moved to-quash the indictment, because article 163 of the Penal Code, upon which this indictment is predicated, and article 320 of the Penal Code “ define the same offense set forth in the indictment, and they provide different punishments; and, therefore, no certain punishment is affixed by law to the offense charged.”

If the same acts constitute an offense, though found in different statutes or articles of the same code, and these acts are punished differently, we would be inclined to hold that article 3 of the Code of Criminal Procedure would be infringed, and that neither could be enforced for want of certainty in the punishment. But is this the case presented in this record?

Article 163 of the Penal Code makes it a crime for any person (other than a peace officer) to carry a gun on any day of election, during the hours the polls are open, within one-half mile of the voting place, and the punishment fixed is a fine of not less than one hundred nor more than five hundred dollars, and in addition thereto the offender may be imprisoned in the county jail for a period not exceeding one month.

How, what are the elements of this offense? First, a gun or pistol must be carried on a day of election; second, the gun must be carried during the hours the polls are open; third, it must be carried within one-half mile of the voting place.

What are the ingredients of the offense defined by article 320 of the Penal Code? First, going to an election precinct on the day or days of an election; second, there must be a going when any portion of the people of this State are collected to vote at an election; third, a having or carrying about the person any fire arm, etc. The penalty to this offense is a fine not less than fifty nor more than five hundred dollars.

By comparing the provisions of these articles, to wit, 163 and 320, it will readily be found that the elements of the offenses are quite distinct, while there may be one common to both, and that these articles define different offenses.

If a person should be convicted under article 320 upon evidence which not only establishes the offense charged, but also that defined in article 163, and the State were to attempt to convict for the.offense defined by article 163 under an indictment drawn under said article, in such state of case a very serious question would arise.

Opinion delivered June 6, 1888.

But let us suppose that the party is being tried upon an indictment drawn upon article 320, and that the evidence clearly shows a violation of article 163 as well as article 320. Gan the accused take advantage of this matter or complain? Evidently not, unless the trial is upon complaint before a court which has no jurisdiction of the greater offense, that (shown, not by the complaint, but by the evidence. (See Code, Crim. Proc., art. 553), There was no err'or in refusing to quash the indictment.

Appellant insists that the election was void, and hence there, was no offense in carrying the gun. The record furnishes ample proof that an election was being held to determine whetheri the sale of intoxicating liquors should be prohibited in a certain precinct in Karnes county. This election was had under color, of law, and if not in strict compliance with the statute, certainly; the appellant can not object.

The charges requested were properly refused. The evidence objected to was immaterial and harmless.

The judgment is affirmed.

Affirmed.