Piper v. State
| Decision Date | 20 May 1908 |
| Citation | 110 S.W. 899 |
| Parties | PIPER v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from McCulloch County Court; C. A. Wright, Judge.
Earnest Piper was convicted of violating the local option law, and appeals. Reversed and remanded.
Walker, Adkins & Walker, for appellant. F. J. McCord, Asst. Atty. Gen., and Jno. E. Brown, Co. Atty., for the State.
This is a local option conviction. Appellant, in addition to his plea of not guilty, interposed a special plea of former conviction, which is in legal form and properly presents the issue on the face of pleadings. Bearing upon this issue the the facts are that the witness Crawford purchased from appellant two pints of whisky, one in the morning just prior to the noon hour, and the other just after that hour; the time intervening constituting two distinct sales or transactions. Appellant was placed on trial and convicted under indictment No. 445; the indictment in this case being No. 446. The conviction under indictment No. 445 constitutes the basis of his special plea. The jury found against his plea. The court charged the jury, as usual in such cases, that the burden of proof was upon appellant to show the truthfulness of his plea. The charge submits, in a general way, that if the witness bought intoxicants from appellant on the 18th day of May they should convict him.
Without going into a discussion as to the questions raised as to the supposed errors in the charges given, and the action of the court refusing the special requested instruction, the matter will be treated from a general standpoint. The evidence in this case being identical with that in the former case, and both transactions being before the jury in both cases without any limitation from the court as to which should form the basis of a conviction, and under the law it being proper for the jury to convict for either sale, we are of opinion that the plea should have been sustained, and the verdict of the jury should have determined it to be true. It would be impossible for the jury in this case to have decided upon which transaction the former verdict was based. The testimony with regard to both being before the jury, and their attention not being directed to which should form the basis of the first verdict, they could have appropriated either; and under the facts in this case the second jury may have convicted for the same offense that formed the verdict by the first jury. It is too well settled in Texas for...
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Spannell v. State
...of said offenses; it being uncertain for which one the conviction was had. Deshazo v. State, 65 Ark. 38, 44 S. W. 453; Piper v. State, 53 Tex. Cr. R. 550, 110 S. W. 899; Alexander v. State, 53 Tex. Cr. R. 553, 110 S. W. 918; Fears v. State, 77 Tex. Cr. R. 297, 178 S. W. With reference to th......
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Barnes v. State
...Cr. R. 504, 111 S. W. 145, and 53 Tex. Cr. R. 555, 110 S. W. 918, and Piper v. State, 53 Tex. Cr. R. 485, 110 S. W. 898, and 53 Tex. Cr. R. 550, 110 S. W. 899, it was held that, even in a case where the plea of former jeopardy was improperly overruled, and both cases were before this court ......
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Cloninger v. State
...no uncertainty obtains as to the transaction for which conviction occurred. Deshazo v. State, 65 Ark. 38, 44 S. W. 453; Piper v. State, 53 Tex. Cr. R. 550, 110 S. W. 899; Alexander v. State, 53 Tex. Cr. R. 553, 110 S. W. 918; Fears v. State, 77 Tex. Cr. R. 297, 178 S. W. 519; Griffey v. Sta......
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