Banks v. State

• Decision Date: 20 December 1922
• Docket Number: (No. 6883.)
• Citation: 246 S.W. 377
• Parties: BANKS v. STATE.
• Court: Texas Court of Criminal Appeals

246 S.W. 377

BANKS v. STATE.

(No. 6883.)

Court of Criminal Appeals of Texas.

December 20, 1922.

Appeal from Criminal District Court, Tarrant County; George E. Hosey, Judge.

Charley Banks was convicted of the unlawful possession, and unlawful manufacture of intoxicating liquor, and unlawful possession of equipment for such manufacture, and he appeals. Reversed and remanded.

Jesse M. Brown, Cr. Dist. Atty., of Fort Worth, and R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

A penalty of one year in the penitentiary was assessed against appellant.

The indictment contained three counts: The first charged the unlawful possession of intoxicating liquor; the second charged the unlawful manufacture of such liquor; the third, unlawful possession of equipment for such manufacture. The prosecution was instituted and the trial had when the acts alleged were all felonies, before the amendment to what is known as the Dean Liquor Law, passed by the Thirty-Seventh Legislature (Vernon's Ann. Pen. Code 1922, art. 588¼ et seq.), became effective. The court submitted all three counts to the jury, not requiring them, in the event they convicted, to specify of which offense they found appellant guilty. After the charge was read to the jury and argument begun, counsel for appellant made a verbal motion requiring the state to elect for which alleged offense it would seek a conviction. The motion was overruled because, in the opinion of the trial judge, it came too late. A general verdict of guilty was returned, and thereupon judgment was rendered adjudging appellant guilty of all three offenses.

The state contends that the motion to elect came too late, and, notwithstanding the act charged in the third count is no longer an offense, and the first count is defective in not alleging the possession was for the purpose of sale, that the judgment should be reformed by this court to apply to the second count for manufacture only. In support of this proposition we are referred to Rozier v. State, 90 Tex. Cr. R. 337, 234 S. W. 666. The record in that case failed to show any request for an election made at any time in the lower court, the question being raised for the first time in this court. Unless the request for election in the present case came at such a time that we are authorized to disregard it entirely, Smith v. State, 90 Tex. Cr. R. 273, 234 S. W. 893, is directly in point and calls for a reversal.

No inflexible rule as to when the right to demand an election first arises or when it ceases can be laid down for the very good reason stated by Mr. Bishop in his Criminal Procedure, vol. 1, § 462, that it is largely a matter of judicial discretion and "because it is difficult to reduce discretion to rule, and partly because judicial opinions on such a subject cannot in the nature of things be in complete harmony." The general rule is that the motion should be made before the defendant enters upon his evidence. Blackwell v. State, 51 Tex. Cr. R. 24, 100 S. W. 774; Bishop's Crim. Proc. vol. 1, § 461; Wharton's Crim. Proc. vol. 1, § 346. The trial court was evidently controlled by this rule in denying the election because the request came after argument had begun. Appellant certainly could not be convicted of the three distinct felonies charged against him. The motion to elect after the charge was read to the jury was a delayed exercise of his right, but it directed the court's attention to the matter complained of by appellant, and we are not inclined to hold that he should be denied this right because of his failure to present his motion when the prosecution closed its evidence. We have a judgment before us in which appellant has been convicted of three separate and distinct felonies which were offenses at the time of the trial. When the motion to elect was made, we believe the trial court should have withdrawn his charge from the jury and either required the state to elect for which offense they would seek a conviction, or, if under the facts an election was not required, he should have amended his charge so as to direct the jury to specify in their verdict of which offense they convicted, if any. We think the Smith Case, supra, controls, rather than the Rozier Case, supra.

Many cases are reaching this court under prosecutions for violation of the present liquor laws, where the right of election as between independent felonies charged in separate counts is ignored, and some, as in the instant case, where convictions are for more than one distinct felony. It has been so short a time since violations of liquor laws in our state were misdemeanors (in which a different rule obtains with reference to elections, see Branch's Ann. P. C., p. 233) it appears to be difficult to realize in dealing with charges for such violations under our present statute that they are felonies, and must be treated and tried accordingly. This is our excuse for adverting to the matters hereafter mentioned. It is not thought necessary to review the general question of election. The...