Smith v. State
| Decision Date | 28 October 1925 |
| Docket Number | (No. 9235.) |
| Citation | 276 S.W. 924 |
| Parties | SMITH v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Taylor County; W. R. Ely, Judge.
W. C. Smith was convicted of transporting liquor, and he appeals. Reversed and remanded.
T. A. Bledsoe, Cunningham & Oliver, and J. F. Cunningham, all of Abilene, for appellant.
Sam D. Stinson, State's Atty., of Greenville, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.
The appellant was convicted in the district court of Taylor county for the offense of transporting liquor, and his punishment assessed at confinement in the penitentiary for a term of one year.
The indictment charged two counts; the first was for unlawfully transporting intoxicating liquor, and the second was for unlawfully manufacturing intoxicating liquor. The testimony showed from the state's standpoint that he transported the liquor in question on Sunday, about the 4th day of May, in the town of Abilene, and that the day thereafter he confessed to the county attorney that he had been engaged in the manufacture of liquor at his home about 12 miles from Abilene, and on that day the sheriff of Taylor county went to his said home and found part of a still or at least equipment out of which part of a still could have been made. We think it clear that the testimony was sufficient from the state's standpoint at least to show appellant's guilt of both of said offenses. We think it also clear that the offenses charged were separate and distinct felonies, and had no criminal relation one toward the other.
By bill of exception No. 1, it is shown that, after both the defendant and the state had submitted their evidence and rested, the appellant requested the court to require the state to elect upon which count in the indictment it would rely for a conviction. This motion to elect was overruled, and the court's ruling thereon is assigned as error. Under the authorities in this state, we think that the appellant was entitled to require the state to elect on which count in the indictment it would seek to convict him. So much has been written on the question of election between counts and between offenses in this state that we do not deem it necessary to discuss the matter at length. We content ourselves by saying that the exact question presented here was decided in the case of Bader v. State, 57 Tex. Cr. R. 293, 122 S. W. 555. Also see Banks v. State, 93 Tex. Cr. R. 117, 246 S....
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...32 Tex.Cr.R. 568, 25 S.W. 426 (1894). That follows from what the Court characterized as "a clear legal right," Smith v. State, 101 Tex.Cr.R. 615, 276 S.W. 924, 925 (1925). However, like most legal rights, that one too may be waived. Article 1.14, V.A.C.C.P. Accordingly, if election is not d......
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