McClain v. State

KRUEGER, Judge.

The offense is possession of whiskey for the purpose of sale in a dry area. The punishment assessed is a fine of one thousand dollars.

Appellant was charged by complaint and information with the primary offense of possessing whiskey for the purpose of sale in a dry area. For the purpose of enhancing the punishment, the state in two separate paragraphs charged two prior convictions for offenses of like character.

The record reflects that some peace officers, armed with a search warrant, went to appellant’s residence and searched his house and premises. The search resulted in the discovery of five “fifths” and three pints of Seagram’s Seven Crown whiskey and two “fifths” of gin. That Brown County was a dry area was definitely proven. Appellant did not testify.

The court, in his charge, instructed the jury that if they found the appellant guilty of the primary offense of possessing whiskey in a dry area for the purpose of sale and they further found that he had been theretofore twice convicted of offenses of like character, that then they would assess his punishment at not less than one hundred dollars nor more than four thousand dollars, or by both fine and imprisonment. The jury found him guilty and assessed his punishment as above stated.

Before the court submitted his charge to the jury, appellant addressed certain objections thereto and requested certain special charges,' some of which were given by the court and others were refused. Among appellant’s objections to the court’s charge were the following: “Said information and complaint does not show how said previous convictions arc alike or like the offense with which he is charged in this information.” In addition to the objection aforesaid, he requested the following special charge, which the court declined to give, to-wit: “In this case the court has permitted to be introduced in evidence before you certain testimony to show that the defendant, Neil McClain, has been heretofore convicted of other violations of the law, and you are hereby instructed that under the allegations of the complaint and information on which the defendant is being tried, that evidence of such other violations of the law are improperly and wrongfully admitted, and you are hereby instructed that you cannot consider them for any purpose.” It occurs to us that the court erred in declining to heed the objections and in declining to give said special requested charge because the averment in the complaint and information in attempting to charge the first prior conviction merely charged that the prior conviction was for a like offense, which was merely a conclusion of the pleader without stating the nature of the prior offense. In the other paragraph, the state charged the second conviction was for an offense of like character, to-wit: “with possession of whiskey for the purpose of sale in a dry area.” This paragraph was' sufficiently certain and definite. However, the court, in his charge, instructed the jury not only on the law pertaining to the primary offense, but submitted the question of two prior convictions. We have herein pointed out wherein the allegations of the prior convictions charged in the first paragraph is fatally defective, and the court should have responded to the objection or submitted appellant’s requested charge relating thereto. The jury returned a general verdict which in our opinion constitutes error. In the case of Martin v. State, 142 Tex. Cr. R. 623 (156 S. W. 2d 144), this court said, it seems to be the settled law in this state “that, where an information contains several counts, one of which is fatally defective, and all counts are submitted to the jury, and the evidence tends to support the offense charged in the defective count, and a general verdict is returned by the jury, a judgment of conviction will, under such circumstances, be set aside.” See Waltrip v. State, 134 Tex. Cr. R. 202 (114 S. W. 2d 555); Reynolds v. State, 82 Tex. Cr. R. 326 (198 S. W. 958); Smith v. State, 57 Tex. Cr. R. 609 (124 S. W. 665); and Martin v. State, 142 Tex. Cr. R. 623 (156 S. W. 2d 144).

In view of the disposition we are making of this case, we do not deem it necessary to discuss his bill of exception No. 2.

For the error herein pointed out, the judgment of the trial court is reversed and the cause is remanded.

Opinion approved by the Court.