Andrews v. State

Citation228 S.W.2d 173,154 Tex.Crim. 392
Decision Date22 March 1950
Docket NumberNo. 24699,24699
PartiesANDREWS v. STATE.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Runge & Hardeman, Dorsey B. Hardeman, San Angelo, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

WOODLEY, Judge.

Appellant was charged by complaint and information with the violation of art. 667-10, Sec. (a) (1), Vernon's Ann.P.C., prohibiting the sale of beer on Sunday between the hours of 1 o'clock a. m. and 1 o'clock p. m.

For the purpose of enhancing the punishment to be assessed, it was also charged that appellant had been previously convicted of the offense of possession of liquor for the purpose of sale in a dry area.

Such former offense was alleged to be one of like and similar character to that charged against appellant, and such charge and the evidence admitted over the objection of appellant in support of such allegation is the sole ground of complaint on this appeal.

The minimum punishment for sale of beer on Sunday during the prohibited hours is a fine of $100, art. 666-41, P.C., and the jury assessed such minimum punishment against appellant.

Under the provisions of art. 61, P.C., such punishment in the event of a prior conviction of an offense of like character could not have been less than double such minimum fine.

The trial court instructed the jury as to the punishment provided by law for the offense charged, and instructed the jury that they should double the punishment assessed in the event they found beyond a reasonable doubt that appellant had been previously convicted of a like or similar offense. Appellant did not except to the charge.

The jury having assessed the minimum punishment, it is evident that they did not take into consideration such previous conviction in fixing the punishment.

It may be that the jury was not convinced that the offense of possessing liquor for the purpose of sale in a dry area was 'a like or similar offense' to that of selling beer on Sunday during prohibited hours in a wet area.

This, however, is a question of law and not a question of fact. The court must determine whether or not the offenses are of like character. The jury, in such cases, merely determines whether or not the accused was previously convicted of such offense, as an historical fact. See Harbert v. State, 136 Tex.Cr.R. 301, 124 S.W.2d 1005.

Proof of conviction for the offense of possession of liquor for the purpose of sale in a dry area was not admissible against appellant for impeachment purposes, such offense being a misdemeanor not imputing moral turpitude. See Branch's P.C., p. 103, Sec. 169; and Nattali v. State, 151 Tex.Cr.R. 626, 209 S.W.2d 930.

Unless therefore such prior conviction was one that could properly be used for the purpose of enhancing the punishment, as provided in art. 61, P.C., the proof of such conviction was improperly admitted.

An inspector of the Liquor Control Board testified that he had dinner at appellant's cafe and purchased from her a case of beer on Sunday, August 28, 1949, at 12:15 p. m., and that a Mexican employee delivered it.

Appellant denied selling beer to the witness on the occasion, and her testimony was corroborated by that of the Mexican and two other employees.

Under such facts, we are unable to conclude that the admission of such testimony, as to the prior conviction, was not prejudicial to appellant on the issue of her guilt of the present offense.

We are called upon therefore to determine the question as to whether or not the offense of possession of liquor for the purpose of sale in a dry area is an offense of like character as the offense of selling beer on Sunday during prohibited hours, applicable in wet areas. The precise question does not seem to have been before this court.

Under art. 61, P.C., the prior conviction must have been for the same offense. 'The same offense' as so used means an offense of like character. See Gallagher v. State, 142 Tex.Cr.R. 133, 151 S.W.2d 819; Kinney v. State, 45 Tex.Cr.R. 500, 78 S.W. 225; and Muckenfuss v. State, 55 TexCr.R. 216, 117 S.W. 853.

In Warner v. State, 118 Tex.Cr.R. 351, 352, 42 S.W.2d 616, 617, in...

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8 cases
  • Granado v. State
    • United States
    • Texas Court of Criminal Appeals
    • 27 Mayo 1959
    ...Therefore they do not and can not denounce the same offense or offenses of like character. This court has so held. Andrews v. State, 154 Tex.Cr.R. 392, 228 S.W.2d 173; Graham v. State, 159 Tex.Cr.R. 52, 260 S.W.2d 887; Fullylove v. State, 159 Tex.Cr.R. 120, 261 S.W.2d The difference in the ......
  • Penix v. State
    • United States
    • Texas Court of Criminal Appeals
    • 22 Noviembre 1972
    ...not involve moral turpitude. Branch's Ann.P.C., p. 103, Sec. 169; Nattali v. State, 151 Tex.Cr.R. 626, 209 S.W.2d 930; Andrews v. State, 154 Tex.Cr.R. 392, 228 S.W.2d 173.' In Shipp v. State, supra, the question of remoteness was discussed at some length and the observation was made that th......
  • Davidson v. State, 27600
    • United States
    • Texas Court of Criminal Appeals
    • 11 Mayo 1955
    ...not involve moral turpitude. Branch's Ann.P.C., p. 103, Sec. 169; Nattali v. State, 151 Tex.Cr.R. 626, 209 S.W.2d 930; Andrews v. State, 154 Tex.Cr.R. 392, 228 S.W.2d 173. That appellant was prejudiced by the inference regarding prior convictions is reflected in the verdict wherein a jail t......
  • Hill v. State, 28165
    • United States
    • Texas Court of Criminal Appeals
    • 14 Marzo 1956
    ...and the possession of intoxicating liquor for the purpose of sale in a dry area are not offenses of like character. Andrews v. State, 154 Tex.Cr.R. 392, 228 S.W.2d 173. We decline to extend the rule there stated to violations of the law regulating the sale of whisky in a wet area, and hold ......
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