Lenore v. State, 20416.

• Decision Date: 31 May 1939
• Docket Number: No. 20416.,20416.
• Citation: 129 S.W.2d 657
• Parties: LENORE v. STATE.
• Court: Texas Court of Criminal Appeals

129 S.W.2d 657

LENORE v. STATE.

No. 20416.

Court of Criminal Appeals of Texas.

May 31, 1939.

Rehearing Denied June 23, 1939.

Commissioners' Decision.

Appeal from Collin County Court; J. E. Abernathy, Judge.

Frank Lenore was convicted of unlawfully possessing whisky for the purpose of sale in a dry area, and he appeals.

Affirmed.

J. W. McCullough, of McKinney, and Floyd Harry, of Farmersville, for appellant.

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

CHRISTIAN, Judge.

The offense is unlawfully possessing whisky for the purpose of sale in a dry area; the punishment, confinement in jail for 400 days.

The punishment was enhanced under the provisions of Art. 61, P. C., which reads as follows: "If it be shown on the trial of a misdemeanor that the defendant has been once before convicted of the same offense, he shall on a second conviction receive double the punishment prescribed for such offense in ordinary cases, and upon a third or any subsequent conviction for the same offense, the punishment shall be increased so as not to exceed four times the penalty in ordinary cases."

This court has held that the words "same offense" as used in the foregoing article do not mean the identical offense, but an offense of like nature. Kinney v. State, 45 Tex.Cr.R. 500, 78 S.W. 225; Muckenfuss v. State, 55 Tex.Cr.R. 216, 117 S.W. 853. In the present case the information and complaint set forth two prior convictions of the appellant, one being for the offense of selling intoxicating liquor in a dry area, which conviction was alleged to have occurred on the 29th of July, 1936, and the other being for the offense of transporting intoxicating liquor in a dry area, the conviction alleged to have occurred on the 28th day of June, 1938.

In supporting the averment of a prior conviction for selling intoxicating liquor in a dry area the state introduced a judgment of conviction wherein it was shown that a fine of twenty-five dollars had been assessed against the appellant. It is appellant's contention that the judgment is void for the reason that the minimum fine authorized by the statute was one hundred dollars. The punishment imposed was not of a character different from that authorized by the statute for the offense of selling intoxicating liquor in a dry area. While the judgment imposed a fine below the minimum provided by the statute, the statutory kind of punishment was the same. The defect of the judgment was not jurisdictional, but merely erroneous, since the court acquired jurisdiction of the person of the appellant and of the subject matter. In re Fanton, 55 Neb. 703, 76 N.W. 447, 70 Am.St.Rep. 418. If the judgment had been of a different character than that authorized by the statute appellant might be in a position to assert that it was void, but in view of the fact that the statutory kind of punishment was imposed, such judgment is not subject to be attacked collaterally merely because the minimum penalty assessed was below the minimum authorized by the statute. In re O'Neill, 143 Cal. 634, 77 P. 660, 101 Am.St.Rep. 138. See also Ex parte Burden, 92 Miss. 14, 45 So. at page 1, 131 Am.St.Rep. 511. We are constrained to overrule the contention that the judgment in question is void.

It is insisted that the offenses of transporting intoxicating liquor in a dry area and possessing intoxicating liquor in such area for the purpose of sale are not of like character. We are unable to agree with this contention. In Johnson v. Commonwealth, 206 Ky. 594, 268 S.W. 302, 303, in considering a similar contention, the Supreme Court of Kentucky used language as follows: "The purpose of the whole act was to prevent the unlawful manufacture and sale of intoxicating liquors, and to that end many offenses were constructed by the statute and placed upon a practical footing with the actual manufacture and sale, and the same penalties prescribed for such additional offenses. The plain purpose of the increased penalty was to deter the citizen from a second offense of any kind or nature that might interfere with the effectual enforcement of the act; if an individual may one month be guilty of one of the offenses designed to bring about that enforcement, and the following month of another, and so on, without subjecting himself to the increased penalty, the deterrent force of the provision for such penalty would thereby be weakened. A shrewd violator might go through the whole category of offenses denounced by this act, and being careful not to be guilty the second time of the identical offense, never be subject to the enhanced penalty which was designed primarily to bring about an end to such infractions."

In McConnell v. People, 73 Colo. 99, 213 P. 674, it is shown that conviction was for selling intoxicating liquor and a second for transporting intoxicating liquor. The...