Johnson v. State

• Decision Date: 14 October 1931
• Docket Number: No. 14319.,14319.
• Citation: 42 S.W.2d 782
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

42 S.W.2d 782

JOHNSON v. STATE.

No. 14319.

Court of Criminal Appeals of Texas.

October 14, 1931.

Commissioners' Decision.

Appeal from District Court, Dawson County; Gordon B. McGuire, Judge.

Will Johnson was convicted of possession of intoxicating liquor for the purpose of sale, and he appeals.

Reversed and remanded.

Kirby, King & Overshiner, of Abilene, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for two years.

A search of appellant's residence and automobile resulted in the finding of three gallons of whisky. There was testimony that appellant had sold intoxicating liquor.

Bill of exception No. 7 presents the following occurrence: After the district attorney had developed the state's case, he discovered that he had not read the indictment. Receiving permission of the court, he read the indictment to the jury, and appellant entered his plea of not guilty thereto. After the indictment had been read, no other testimony was introduced by either side, except the testimony of one state's witness. The testimony of this witness was subsequently withdrawn from the consideration of the jury. The district attorney at no time offered to reintroduce the testimony. Appellant offered no testimony. In a motion in arrest of judgment, appellant called the court's attention to the fact that the district attorney at no time reintroduced the testimony after reading the indictment. In Essary v. State, 53 Tex. Cr. R. 596, 111 S. W. 927, 930, the authorities touching the necessity for complying with subdivisions 1 and 2 of article 642, C. C. P., requiring that the indictment or information be read to the jury by the attorney prosecuting and the pleas of the accused entered, were discussed. In reviewing the authorities holding that these provisions of the statute were mandatory, Judge Ramsey said:

"The indictment is the basis for the prosecution. Among other things, its office is to inform the appellant of the charge laid against him, and one of the purposes of the requirement that it shall be read to the jury at the beginning of the prosecution is to inform them in precise terms of the particular charge laid against the defendant on trial. His plea thereto makes the issue. While it may be thought that this ground of objection is in its nature quite technical, it is, nevertheless, the right of every defendant to have the charge read against him and to have his plea entered therein. Such is the express provision of our statute, and this...