Todd v. State , 89 Tex. Crim. 99 ( 1921 )

Appellant was convicted in the District Court of McLennan County of a violation of the Dean Liquor Law, and his punishment fixed at one year in the penitentiary.

The conviction was had under the second count in the indictment, the charging part of which was as follows: "W.R. Todd did receive, transport, export and deliver and solicit and take orders for and did furnish spirituous, vinous and intoxicating liquors, etc." A motion to quash this count in the indictment upon the ground that it was vague and indefinite, failed to particularize the offense charged and combined in the same count a number of separate and distinct felonies, naming them, was overruled. We are of opinion that said motion was meritorrious. The authorities are not quite clear as to those cases in which offenses of different nature may be charged in the same count, but all of them seem to agree that offenses not involving each other may not be so charged. 2 Wharton Precedent of Indictment and Pleas, page 834, says: "Where offenses are of a distinct nature, neither of them capable of being resolved into the other, it is error to join them in the same count." In the instant case it must be admitted that each of the things mentioned in the said count, to-wit: transporting, exporting, delivering, soliciting, taking orders for, possessing, furnishing, — are separate felonies, and while some of them may involve some of the others, this is not true of all of them. For instance, possession is involved in most of the others, but clearly, transporting and exporting do not involve soliciting; taking orders for, does not involve exporting; receiving does not involve delivering. In Beaumont v. State, 1 Texas Crim. App., 537, it is held that an indictment which produces confusion and uncertainty as to what offense was really intended to be charged, and in one count of which two distinct offenses are charged, is bad. In Brown v. State, 38 Tex.Crim. Rep., this court said, "duplicity consists of alleging in one count separate and distinct felonies." In Ferguson v. State, 80 Tex. Crim. 383, 189 S.W. Rep., 271, Judge Prendergast for this court held an indictment bad in which three separate and distinct felonies were set out in one count. In Vernon's C.C.P., Section 17, under Article 481 occurs this statement, supported by many citations. "Duplicity is the joinder of two or more distinct offenses in one count, and if it be such as to produce confusion and uncertainty as to what was intended to be charged it, would vitiate the indictment." Substantially the same rule is announced in Branch's Anno. Penal Code, Section 506. Applying what has been said to the instant indictment it would appear that transporting is a separate and distinct act as well as felony from soliciting; that exporting is likewise separate and distinct from taking orders for; that receiving intoxicating liquors is a separate and distinct act and felony from delivering same; and that charging one with each and all of these acts in one count would necessarily lead to confusion and uncertainty. One accused of crime is presumed innocent, and one office of an indictment is to apprise him of that which he must meet in court as the charge against him. We do not think he could be so informed by the indictment in the instant case.

Believing the indictment fatally defective, we forego discussion of the other questions raised and for said defect the cause will be reversed and dismissed.

Dismissed.

ON REHEARING. March 30, 1921.