Creech v. State

• Decision Date: 23 April 1913
• Citation: 158 S.W. 277
• Parties: CREECH v. STATE.
• Court: Texas Court of Criminal Appeals

158 S.W. 277

CREECH v. STATE.

Court of Criminal Appeals of Texas.

April 23, 1913.

Rehearing Denied June 4, 1913.

Appeal from District Court, Ellis County; F. L. Hawkins, Judge.

S. N. Creech was convicted of unlawfully engaging in the business of selling intoxicating liquors, and he appeals. Affirmed.

W. H. Fears, of Waxahachie, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted for unlawfully engaging in and pursuing the occupation and business of selling intoxicating liquors in Ellis county, Tex., after and while prohibition had been duly put in force in said county, and his penalty fixed at five years in the penitentiary.

The indictment charged the offense to have been committed on or about March 20, 1912, and alleged many sales to various persons, naming them. The indictment follows substantially and fully the form of indictment laid down and approved by this court in Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 125, and many cases decided by this court since then.

Appellant pleaded former jeopardy, and raised the question in many ways. The state contested his plea and contention, and denied that there was any former jeopardy. The former indictment and conviction relied upon by appellant was an indictment preferred against him at the February term, 1911, of the district court of said county, wherein it was charged that on or about September 1, 1910, and on each succeeding day from that date up to March 18, 1911, in a certain house in said county he kept, etc., a disorderly house of which he was the owner and lessee and which was controlled by him, in that he did unlawfully sell and keep for sale and was concerned in selling and keeping for sale, and did aid and assist and abet in selling and keeping for sale, spirituous and vinous and malt liquors without first having obtained a license under the law to retail such liquors. That case was tried on July 10, 1911, and he pleaded guilty, and upon his said plea was so adjudged and convicted and his penalty properly fixed. This case, as stated above, shows that he was charged with an entirely separate and distinct offense at an entirely separate and distinct time. The state in this case confined its testimony in every respect to the period between July 10, 1911, and March 20, 1912, the date which the indictment herein charges this offense to have been committed. And both in controlling the evidence and in the charge the court restricted all the evidence in this case within that period. The testimony of the various witnesses introduced by the state on this trial showed that within the time from about December 1, 1911, to March 1, 1912, appellant made 15 or 20 separate and distinct sales of whisky to one witness, 2 to another, 6 to another, 3 to another, 4 to another, and 4 or 5 to another. It also showed that within this period appellant sent money by various persons and otherwise to a certain saloon in Dallas, Tex., and bought and had sent to him in various ways large quantities of whisky in pint bottles. It seems he never got it in any other container.

This court has uniformly and in many decisions held that section 14, art. 1, of our Constitution, which provides "no person, for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction," as laid down by Harris' Texas Constitution, subd. 78, p. 130, that the same offense as used in this section, does not mean an offense of the same nature or of similarity, but the identical offense. Muckenfuss v. State, 55 Tex. Cr. R. 229, 116 S. W. 51, 20 L. R. A. (N. S.) 783, 131 Am. St. Rep. 813, 16 Ann. Cas. 768; Bailey v. State, 42 Tex. Cr. R. 289, 59 S. W. 900; Lowe v. State, 4 Tex. App. 34; Campbell v. State, 2 Tex. App. 187; Alexander v. State, 21 Tex. App. 409, 17 S. W. 139, 57 Am. Rep. 617; Kellett v. State, 51 Tex. Cr. R. 641, 103 S. W. 883; Sedgwick v. State, 57 Tex. Cr. R. 422, 123 S. W. 702; Henkel v. State, 27 Tex. App. 512, 11 S. W. 672; Wright v. State, 37 Tex. Cr. R. 629, 40 S. W. 492; Lewis v. State, 24 S. W. 906; Wheelock v. State, 38 S. W. 182; Williams v. State, 13 Tex. App. 286, 46 Am. Rep. 237; Harrington v. State, 31 Tex. Cr. R. 577, 21 S. W. 356; Nichols v. State, 37 Tex. Cr. R. 616, 40 S. W. 502.

This court has also in many cases and uniformly held, as stated by the same author (subdivision 31, p. 123), that the plea of former conviction to be sustained must allege the proceedings which resulted in such former conviction, matter of record and matters of fact, to wit, the former indictment and acquittal or conviction, identity of the person convicted, and the offense of which he was convicted. Williams v. State, 13 Tex. App. 285, 46 Am. Rep. 237; Hefner v. State, 16 Tex. App. 573; Adams v. State, 16 Tex. App. 169; Kain v. State, 16 Tex. App. 282; Grisham v. State, 19 Tex. App. 510.

And also that, to sustain his plea of former jeopardy, the defendant must prove that the acts which constitute the offense for which he was formerly convicted are the very acts which constitute the offense for which he is on trial. Kain v. State, supra; Lowe v. State, 4 Tex. App. 34; Taylor v. State, 4 Tex. App. 29; Boggess v. State, 43 Tex. 347; King v. State, 43 Tex. 351; Wright v. State, 17 Tex. App. 158, as laid down and cited by Mr. Harris in subdivision 29, p. 123. This court, through Judge Hurt, in Fleming v. State, 28 Tex. App. 235, 12 S. W. 605, said: "When the time is carved, as in this case, then, the offense being continuous, whether there be a plea of former conviction or acquittal or not, the proof must be confined to acts done within the time alleged; and if the proof is confined to the time carved, and no part of the time thus carved has been used or utilized by a former conviction, under an indictment covering the whole or a part of the time used in this indictment, the plea of former conviction will not avail." This course was unquestionably pursued in this case as stated above, and the court did not err in any way on this point as claimed by appellant.

Appellant has many bills of exception to the refusal of the court to permit him to ask several state's witnesses certain questions on cross-examination. It is unnecessary to state these various matters. We give one of these bills as a sample of the whole. It shows that one of the state's witnesses, Mansell, had testified that he bought whisky from appellant three separate and distinct times. On cross-examination, after going into the matter and each sale particularly, he testified, and what occurred is as follows: "I drank part of that whisky; did not carry any home; I did not sell any of it. There was two or three of the boys in the crowd with me and going home we drank the whisky. I do not remember now just who the boys were with me; one of the Stapps boys in the crowd. He was 21 years old. I know he was because I have known him 15 years. He came to this country after I did. Q. Did he come from the same place you did?" The state objected to the examination as being immaterial. The court sustained the objection. "Mr. Fears: May it please the court, we are on cross-examination, and I have an object in view, and I would like to have the court to permit me to ask the question. The Court: The court has ruled on it. Mr. Fears: We except, your honor; I will ask the stenographer to take my exception; he has only been in this country nine years, and he says this man came here after he did, and he says he has known him 15 years. The Court: You can go on and interrogate the witness any way you want to, but the court has ruled on that question. Witness: I do not remember just who the other boys were. I could not tell you how old they were; they are over 21. I had known them not very long; do not remember just who they were, but I know they have been after me about giving whisky to minors. I never gave a minor a drop of whisky in my life." By the bill he claims that the witness, if he had been permitted to testify, would have answered that the Stapps boy did not come from the same place he did, and he did not know him until he met him in Ellis county near Ennis, where he was living. No error is shown by the ruling of the court in this matter, and neither of the other matters complained of by appellant's said several bills.

By several bills he complains of the action of the court in setting his case for trial and trying it at the time he did, complaining that the court at first set the case at the heel of some seventeen other cases, and when the time arrived various dispositions were made of the other cases, and he was thereupon rushed into trial without having proper time and opportunity to prepare his case for trial. He made no motion whatever for a continuance. The indictment was returned and filed March 21, 1912. He was at once arrested at his home, Ennis, 15 miles from Waxahachie, and taken by the officer to Waxahachie the same day and placed in jail. The next day he made bond and returned to his home. It is claimed that he was unwell during part of this time. There are other matters stated in the bill. The court in allowing it explained and qualified it as follows: "By examination of statement of facts pp. 48 to 50, as referred to in this bill, the court will see the entire course of action in this matter, and as to that portion of the bill from near top of page 3 to conclusion of the bill I desire to qualify and explain it as follows, especially as to that part of the bill in which counsel seeks to leave the impression that this case was forced to trial with undue haste, and that there was ample time to try it if the case had been set over. Mr. Fears had appealed to the court at the time this case was set to reset it for a different date than for Monday, April 1, 1912, and was informed at the time that the purpose in trying to get as many of the ordinary...