Allen v. State
| Decision Date | 21 May 1890 |
| Citation | 13 S.W. 998 |
| Court | Texas Court of Appeals |
| Parties | ALLEN <I>v.</I> STATE. |
Appeal from Jeff Davis county court; W. W. WIMBERLY, Judge.
Information against John Allen, which charges as follows: "On or about April 30, 1889, in county and state aforesaid, one John Allen did then and there unlawfully engage in and follow and pursue the occupation of selling spirituous, vinous, and malt liquors in quantities less than one quart, said occupation being taxable by law, without first obtaining a license therefor, and the taxes then and there due by him to the said state upon said occupation amounted to $300, and the taxes then and there due by him to said county amounted to $150; the said taxes due the said county and state having been theretofore duly levied according to law." Defendant was convicted, and now appeals.
W. O. Read, for appellant. Asst. Atty. Gen. Davidson, for the State.
It was permissible for the state to show, and it was shown, that the jurat of the complaint was in fact made on May 2, 1889, instead of April 2, 1889, as written therein. This was a mere clerical mistake which did not vitiate the complaint or the information.
There is no defect in the information. It is in the usual form, and alleges but one offense. Exceptions to it were properly overruled.
It is alleged in the information that the taxes due by defendant amounted to $300 to the state, and $150 to Jeff Davis county; said taxes having theretofore been duly levied according to law. Verdict of the jury assesses a fine of $450 against the defendant, that amount being the aggregate amount of the state and county taxes alleged to be due. There is no evidence in the record that any county tax had been levied; and if the jury, in assessing the fine, included the county tax of $150 alleged in the information to be due, the verdict, to that extent, is unwarranted by the evidence. There is nothing in the record which enables us to say that the jury did not include the amount of the county tax as a part of the penalty assessed by their verdict. A conviction for the county tax was unwarranted in the absence of any proof of the levy of such a tax, and of the amount levied. Crews v. State, 10 Tex. App. 292; Mansfield v. State, 17 Tex. App. 468. Because of the uncertainty of the verdict, the judgment is reversed, and the cause remanded.
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Means v. State
...amendments were made before verdict. This seems uniformly held to be correct practice. Scott v. State, 9 Tex. App. 434; Allen v. State (Tex. Sup.) 13 S. W. 998; Neiman v. State, 29 Tex. App. 361, 16 S. W. 253; Flournoy v. State, 51 Tex. Cr. R. 29, 100 S. W. 151; Sanders v. State, 52 Tex. Cr......
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Adams v. State
...county judge was in consonance with the adjudicated cases in this state. See Flournoy v. State, 51 Tex. Cr. R. 29, 100 S. W. 151; Allen v. State, 13 S. W. 998. These cases, as we understand them, are in point and decisive of the question adversely to And the court affirmed that case. In Mal......
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Sanders v. State
...This ruling of the county judge was in consonance with the adjudicated cases in this state. See Flournoy v. State, 100 S. W. 151; Allen v. State, 13 S. W. 998. These cases, as we understand them, are in point, and decisive of the question adversely to Appellant testified in his own behalf. ......
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Cubine v. State
...1911." This was permissible, and the court did not err in permitting the jurat to be amended. Scott v. State, 9 Tex. App. 434; Allen v. State (App.) 13 S. W. 998; Neiman v. State, 29 Tex. App. 361, 16 S. W. 253; Sanders v. State, 52 Tex. Cr. R. 156, 105 S. W. The judgment is affirmed. ...