Day v. State
| Decision Date | 06 October 1926 |
| Docket Number | (No. 10141.) |
| Parties | DAY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Lampasas County Court; J. Tom Higgins, Judge.
Lee Day was convicted of larceny, and he appeals. Reversed and remanded.
T. S. Alexander and H. F. Lewis, both of Lampasas, for appellant.
Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.
This prosecution is by information. The record contains no complaint as a basis for the information. In such condition no jurisdiction is shown in the county court. Article 415, C. C. P. 1925. Wadgymar v. State, 21 Tex. App. 459, 2 S. W. 768; Diltz v. State, 56 Tex. Cr. R. 127, 119 S. W. 92. Other authorities are annotated in note 5 under said article 415 in volume 1, Vernon's 1925 C. C. P. We have not based disposition of the appeal on the defect in the record pointed out, assuming that the clerk in preparing the transcript omitted the complaint, but, if in fact no complaint is on file supporting the information, the trial court is directed to dismiss the prosecution. Such would be the proper and necessary order of this court if reversal was not called for upon other grounds.
In one count the information charges appellant with the theft of 380 pounds of seed cotton of the value of $20 from Ernest Smith on October 31, 1925. In another count he is charged with theft of a cotton sack valued at $1.50 from the same party on the same date. The court's charge is so worded as authorized separate conviction upon each count, even though the evidence shows that the cotton and cotton sack were taken at the same time, which would constitute but one offense. No objection was made to the charge; if so the record fails to show it. The jury returned a verdict finding appellant "guilty of stealing the cotton and cotton sack, and assess his punishment at six months in jail for each offense, without fine." This verdict was received by the court, and judgment entered thereon condemning appellant to confinement in the county jail for twelve months.
Appellant urged in his motion for new trial that the verdict finds no support in the evidence because it shows only one violation of the law, for which two penalties cannot be inflicted. We think this contention must be sustained. This is not an instance where in separate counts distinct misdemeanor offenses are charged, in which case it has been held convictions might be had for the separate offenses proved...
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Olivares v. State, 17036.
...C. C. P. (1925); Wadgymar v. State, 21 Tex. App. 459, 2 S. W. 768; Diltz v. State, 56 Tex. Cr. R. 127, 119 S. W. 92; Day v. State, 105 Tex. Cr. R. 117, 286 S. W. 1107. Other authorities are annotated in note 5 under said article 415, vol. 1, Vernon's Ann. Tex. C. C. P. No complaint appearin......
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...prerequisite for a prosecution by information. Article 415, C.C. P. See Stacy v. State, 96 Tex.Cr.R. 499, 258 S.W. 475; Day v. State, 105 Tex.Cr.R. 117, 286 S.W. 1107; Abbey v. State, 55 Tex. Cr.R. 232, 115 S.W. In bill of exception No. 2 complaint is made of the argument of the county atto......
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Thomas v. State
...complaint was void and reversed and dismissed the case, citing Stacy v. State, 96 Tex. Cr. R. 499, 258 S. W. 475, and Day v. State, 105 Tex. Cr. R. 117, 286 S. W. 1107. Under the undisputed facts in the instant case and the authorities, supra, it is plain that the county judge, in overrulin......
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Thomas v. State
...415, C. C. P. 1925; Vernon's Ann. Tex. C. C. P., vol. 1, p. 313; Stacy v. State, 96 Tex. Cr. R. 499, 258 S. W. 475; Day v. State, 105 Tex. Cr. R. 117, 286 S. W. 1107. See, also, article 763, C. C. P. 1925, touching the office of the motion in arrest of judgment. In the absence of a written ......