Rozier v. State
| Citation | 234 S.W. 666 |
| Decision Date | 09 November 1921 |
| Docket Number | (No. 6402.) |
| Parties | ROZIER v. STATE. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Appeal from District Court, Franklin County; R. T. Wilkinson, Judge.
Clyde Rozier was convicted of unlawfully transporting intoxicating liquor, and he appeals. Affirmed. Motion for rehearing overruled, but judgment and sentence amended and corrected.
L. W. Davidson, of Sulphur Springs, for appellant.
R. G. Storey, Asst. Atty. Gen., for the State.
Conviction was for unlawfully transporting intoxicating liquor. Punishment one year in penitentiary.
There are no bills of exceptions in the record. Appellant's motion to quash the indictment because our law is in conflict with the federal law upon the subject of intoxicating liquor was properly overruled. Franklin v. State, 230 S. W. 692; Ex parte Gilmore, 228 S. W. 199.
Appellant urges in his motion for new trial that the evidence shows he was acting under duress in his connection with the whisky, and therefore this conviction should be set aside. We fail to discover any such duress as will excuse a party for violating the law. Article 44, Vernon's P. C.; Burton v. State, 51 Tex. Cr. R. 201, 101 S. W. 226.
The judgment of the trial court will be affirmed.
On Motion for Rehearing.
The opinion states that appellant was convicted for "unlawfully transporting intoxicating liquor." We were in error to this extent. The indictment charged him in one count with the unlawful "possession," and in another with unlawful "transportation." Both counts were submitted to the jury, a general verdict of guilty was returned, and judgment and sentence was for both possession and transportation. The contention is now made that since the amendment (1st and 2d Called Session 37th Leg. p. 233) it is not a violation of the law to possess intoxicating liquor unless for the purpose of sale, and the count for that offense is now defective; the verdict being general, it is urged that a motion for rehearing should be granted. Conceding the correctness of the proposition that the count for "possessing" is now bad, it does not follow by any means that the motion for rehearing is good. Mr. Bishop, in his New Criminal Procedure (volume 1, § 1015, subds. 2 and 4), has stated the rule very clearly.
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Bigley v. State
...count or offense alleged therein. E.g., Garcia v. State, 141 Tex.Cr.R. 444, 149 S.W.2d 113, at 114 (1941); Rozier v. State, 90 Tex.Cr.R. 337, 234 S.W. 666, at 668 (1921) and followings (mostly liquor cases); Swartz v. State, 18 S.W. 415 (Tex.App.1892), but compare Knott v. State, 93 Tex.Cr.......
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...to require the jury to designate the count upon which the conviction was found would not alone justify a reversal. Rozier v. State, 90 Tex. Cr. R. 339, 234 S. W. 666, and cases therein Finding no error, the judgment is affirmed. On Motion for Rehearing. HAWKINS, J. Appellant devotes several......
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...by this court to apply to the second count for manufacture only. In support of this proposition we are referred to Rozier v. State, 90 Tex. Cr. R. 337, 234 S. W. 666. The record in that case failed to show any request for an election made at any time in the lower court, the question being r......