Welchek v. State

Appellant raised the point as to the sufficiency of the second count in the indictment under which the conviction was had. We disposed of it in our original opinion in the following language.

"There is some question raised as to the sufficiency of the indictment by motion to quash and also in arrest of judgment, but as same have not been perpetuated in bills of exceptions they will not be discussed."

In the motion for rehearing our attention is called to the fact that in the orders of the court overruling the motion to quash, and in arrest of judgment, exceptions were reserved which are matters manifest of record, and consideration will be given the question.

The second count reads as follows:

"And the Grand Jurors aforesaid do further present in and to said court at said term, that, in the County of Brazoria, and State of Texas, on the 22nd day of April, A.D. 1921, Frank Kolar and Rudolph Welchek did, unlawfully and directly transport and possess, and not at any residence, have in their possession whiskey and spirituous liquor capable of producing intoxication, and then and there containing in excess of ten per cent of alcohol by volume, said liquor not being for medicinal, mechanical, scientific or sacramental purposes against the peace and dignity of the State."

Appellant insists that it should have been quashed; (a), because the same is duplicitous in that it undertakes to charge both the transportation and the possession of intoxicating liquor; (b), that said second count charges no offense in so far as the possession of liquor is concerned, because it fails to allege that he was in possession thereof for the purpose of sale; (c), that said second count fails to allege that the transportation of the liquor was for the purpose of sale; (d), that said second count fails to allege from where and to what place said liquor was being transported. Not waiving the exceptions above set out appellant incorporates in the same instrument what he denominates a plea in abatement to the second count in the indictment on the ground, as we understand it, (e), that Chapter 61, 1st and 2d C.S. Thirty-seventh Legislature, page 233 in effect repealed the Acts of the Thirty-sixth Legislature, Chapter 78, in so far as possession and transportation of intoxicating liquor were concerned, or if not repealed was so modified, (f), that by the terms of the Act of Chapter 61 of the amended law, appellant, who was over the age of 25 years was denied the privilege of a suspended sentence, (the offense of which he was charged having been committed prior to the taking effect of said amendment) and further, (g), that the amended Act enlarged the law so that he might have been convicted at the time of the trial upon the testimony of an accomplice which could not have occurred under the law in effect at the time of the alleged commission of the offense. If the indictment does charge in the same count two felonies; viz: transportation and possession, the same is duplicitous. But to charge possession under the amended law it must be alleged that the possession was for the purpose of sale. (Petit v. State, 90 Tex. Crim. 336, 235 S.W. Rep., 579, and in the same volume will be found Lee v. State, 90 Tex.Crim. Rep., 1093; Davis v. State,90 Tex. Crim. 430, 1094; Dossett v. State, 90 Tex. Crim. 458, 1093, and many other cases to the same effect.) If the pleader in the instant case undertook to charge "possession," it is incomplete, and the averments as to that matter may be treated as surplusage. To charge "transportation" it is not necessary to allege that the liquor was being transported "for sale." (Crowley v. State, 92 Tex.Crim. Rep., 242 S.W. Rep., 472; Cecil v. State, 92 Tex.Crim. Rep.; Copeland v. State,92 Tex. Crim. 554; Land v. State (No. 7164, opinion November 22, 1922); neither is it necessary to allege "from where or to what place" the "transportation" was made. The amendment of the Thirty-seventh Legislature did not repeal the former act denouncing the transportation of intoxicating liquor as an offense. Ex parte Mitchum, 91 Tex.Crim. Rep., 237 S.W. Rep., 936. We have held that where a prosecution was had for an offense committed before the amendment of the Thirty-seventh Legislature became effective the law of accomplice testimony as it existed when the offense was committed should be applied. Plachy v. State, 91 Tex.Crim. Rep., 239 S.W. Rep., 979; Phillips v. State, 92 Tex.Crim. Rep.. This would also be true as to the suspended sentence law. If otherwise entitled to request it, appellant might have filed his application for suspended sentence although over twenty-five years of age, this limitation not having become effective at the date of the alleged offense. But no request for suspended sentence was filed, and neither is it made to appear in the record that he was deprived of any rights to which he was entitled under the holding in the Plachy and Phillips cases (supra). No witness testified in the case who came within the scope of an accomplice under the law before the amendment.

In submitting the case to the jury the learned trial judge ignored the allegations in the second count in the indictment relative to liquor containing "in excess of ten per cent of alcohol by volume." The evidence showed the liquor being transported was whisky. The jury were properly instructed that "whisky is in law deemed a spirituous liquor, capable of producing intoxication." Exception was reserved to the charge because it failed to instruct the jury that before conviction could be had the proof must show that the whisky contained in excess of ten per cent of alcohol by volume. We are not inclined to hold that the allegation in the indictment as to the excess of ten per cent of alcohol so descriptive of the article alleged to have been transported as to require proof thereof before the conviction could be sustained, in view of the many decisions of our own court holding that whisky is an intoxicant, and the general rule thereon stated in "Black on Intoxicating Liquors." Sec. 12, page 14.

Believing the case to have been properly disposed of by affirmance, the motion for rehearing is overruled.

Overruled.