Plachy v. State

• Citation: 239 S.W. 979
• Decision Date: 05 April 1922
• Docket Number: (No. 6851.)
• Parties: PLACHY v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

239 S.W. 979

PLACHY v. STATE.

(No. 6851.)

Court of Criminal Appeals of Texas.

April 5, 1922.

Appeal from District Court, Wharton County; M. S. Munson, Judge.

Tom Plachy was convicted of selling intoxicating liquor, and he appeals. Reversed and remanded.

S. F. Rowan, of Wharton, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Wharton county of the offense of selling intoxicating liquor, and his punishment fixed at four years in the penitentiary.

Appellant made a motion to quash the indictment herein based upon the proposition that chapter 61, Acts First Called Session of the Thirty-Seventh Legislature (Vernon's Ann. Pen. Code Supp. 1922, art. 588¼ et seq.), so changed the law of this state as to render same inoperative upon offenses of similar character as this, which were committed prior to the taking effect of the said amendatory chapter, supra. His contention is that sections 2c and 2d of said chapter are ex post facto laws, and that they so affect the entire law as amended as to prevent the punishment of persons for violations of the Dean Law, which violations were committed prior to November 15, 1921. We do not agree with appellant. Granting that as to prosecutions for offenses committed anterior to November 15, 1921, those who were then accomplice witnesses must still be treated as such, and that a defendant in such a case is entitled to file an application for a suspended sentence, and upon recommendation of the jury to receive same no matter what may be his age, still this would not justify us in holding that as to such prior offenses there is no longer a law punishing same.

By an indictment returned November 24, 1921, and which alleges the date of the offense as November 2, 1921, appellant was charged with the offense of selling intoxicating liquor to one Wooley. Two counts appear in the indictment, the second of which charges the unlawful possession of intoxicating liquor, but does not allege that such possession was for the purpose of sale, and under the uniform holdings of this court said second count charged no offense. This being true, the motion of the appellant to quash said second count should have been sustained, and the issues submitted to the jury should have related to the offense charged in the first count. However a general verdict of guilty was rendered, which, under well-established rules, would be upheld by us as under the first count in said indictment.

It was alleged and proved on the trial that whisky was sold by appellant to said Wooley. The latter testified as a witness for the state. The Dean Law, which was in operation on November 2, 1921, made the purchaser of intoxicating liquor punishable, and when used as a witness this court has uniformly held such purchaser to be an accomplice. This construction of the law must continue to prevail as to all violations thereof which occurred prior to the taking effect of said chapter 61, supra. An examination of said amendatory statute discloses that section 2c thereof reads as follows:

"Upon a trial for a violation of any of the provisions of this chapter, the purchaser, transporter, or possessor of any of the liquors prohibited herein shall not be held in law or in fact to be an accomplice, when a witness in any such trial." Vernon's Ann. Pen. Code Supp. 1922, art. 588¼a3.

Said amendatory act became effective November 15, 1921, or about two weeks after the date of the alleged offense herein charged against appellant. An exception was taken to the charge of the court below in this case because same did not submit to the jury the law of accomplice testimony as applicable to the witness Wooley, and in this connection we observe that the trial court refused a special instruction on the law of accomplice testimony telling the jury that the witness Wooley was an accomplice, and must be considered by them as such. We are not informed by any qualification to any bill of exceptions as to the reason for such failure and refusal on the part of the trial court. It may have been that, the learned trial judge was of the opinion that the amendatory act supra having gone into effect prior to the time of the instant trial, section 2c above quoted was applicable. We are of opinion that such a conclusion would be error.

It seems well settled in this state that a law which alters the rules of evidence applicable in a given case, so that under the new law less or different testimony is required to convict the offender than was required at the time of the commission of the offense, must be held an ex post facto law, and not applicable upon the trial of one for an offense committed prior to the taking effect of such new enactment. Calloway v. State, 7 Tex. App. 585; Valesco v. State, 9 Tex. App. 76; Johnson v. State, 16 Tex. App....