Garner v. State

In his motion for rehearing appellant recognizes that the case of Baker v. State, 106 S.W.2d 308, is in opposition to his contention that the exceptions should have been alleged in the indictment, but urges that the holding in said case is out of line with authorities cited in his brief. Upon original submission of the Baker case our holding was in accord with appellant's contention, but on rehearing that question was exhaustively considered, and while realizing that our decisions are apparently in conflict, we reached the conclusion that the wording of the statute under construction was not such as to demand averments of the exceptions. Much has been written by our predecessors on the point and the lack of harmony in the opinions may be found based on a slight variance in verbage, or arrangement of sentence, in the statutes then under construction. It is our best judgment that under the wording of the law construed in the Baker case the conclusion reached in our opinion on the State's motion for rehearing is sound. It has been followed in Parker v. State, 106 S.W.2d 313; Morris v. State, 106 S.W.2d 314 and Taylor v. State,106 S.W.2d 1056.

The motion for rehearing is overruled.

Overruled.