Stevenson v. State
| Decision Date | 03 November 1926 |
| Docket Number | (No. 10120.) |
| Parties | STEVENSON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Hunt County; J. M. Melson, Judge.
Pink Stevenson was convicted of unlawfully manufacturing intoxicating liquor, and he appeals. Judgment reformed and affirmed.
Jas. W. Bassett, of Amarillo, and H. L. Carpenter, of Greenville, for appellant.
Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.
The appellant was convicted in the district court of Hunt county for unlawfully manufacturing intoxicating liquor, and his punishment assessed at three years in the penitentiary.
We find five bills of exception in the record, in all of which complaint is made to the refusal of the court to permit the appellant to introduce in evidence or show that he had been convicted for the unlawful possession of a still, etc., prior to this trial, contending that said former conviction for the possession of a still would be a bar to the instant case, wherein he was being tried, and was convicted, for manufacturing intoxicating liquors. This contention is untenable. Possessing a still or equipment and manufacturing intoxicating liquor are two separate offenses. Chandler v. State, on Rehearing, 89 Tex. Cr. R. 601, 232 S. W. 337; Calloway v. State, 99 Tex. Cr. R. 438, 270 S. W. 171.
The sentence imposed is for three years, and is here reformed to read not less than one nor more than three years in the penitentiary.
The judgment of the trial court, as reformed, is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the Court.
On Motion for Rehearing.
In the appellant's plea of former conviction are the following averments: That he was charged in two separate indictments, Nos. 4000 and 4001, with two separate offenses respectively, the possession of a still and equipment for the manufacture of intoxicating liquor, and of the manufacture of intoxicating liquor; that in cause No. 4000 the trial resulted in a verdict of guilty of the possession of a still and equipment for the manufacture of intoxicating liquor, which verdict had not been approved and had not been set aside. In failing to show the judgment to be final, the sufficiency of the plea is questionable. See Calloway v. State, 99 Tex. Cr. R. 438, 270 S. W. 171. Appellant claims that the state having carved once, it is prohibited by law from carving again. The principle for which he contends is exemplified in many judicial announcements. See Simco v. State, 9 Tex. App. 348; Wright v. State, 17 Tex. App. 158; Whitten v. State, 94 Tex. Cr. R. 144, 250 S. W. 165; Coon v. State, 97 Tex. Cr. R. 647, 263 S. W. 914; Colter v. State, 94 Tex. Cr. R. 96, 252 S. W. 168; Plunk v. State, 98 Tex. Cr. R. 142, 265 S. W. 158; Vrazel v. State, 90 Tex. Cr. R. 162, 233 S. W. 842. Many others might be mentioned.
At the time of his arrest, the appellant possessed a still and was operating it and making whisky. According to the averments in his pleading, previous to the present trial, he had been convicted for possessing a still. On the present trial, his conviction was for the manufacture of whisky. The possession of a still for the purpose of manufacturing whisky is one offense; the operation of the still in the manufacture of whisky is another offense. Ordinarily, in the nature of things, the possession of a still would precede putting it in operation. The still in the present case was found in a remote place in the woods. The evidence fails to suggest that any other person was connected with it. It must, by some person, have been brought to the place where it was situated, the parts of it assembled, connected, and put in condition for use. The circumstances point to the appellant alone as the one connected with the still, both its possession and operation. If there be in the record any evidence suggesting that the appellant's connection with the still was the manufacture of...
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Gollihar v. State
...the State is again seeking to prosecute the defendant. Luna v. State, 493 S.W.2d 854, 855 (Tex.Crim.App.1973); Stevenson v. State, 106 Tex.Crim. 111, 290 S.W. 536 (1926). In a recent case, the Court of Criminal Appeals has altered the analysis to be applied in a review of an inaccurate jury......
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Luna v. State
...trial must have been upon the same identical act for which the State is again seeking to prosecute the defendant. Stevenson v. State, 106 Tex.Cr.R. 111, 290 S.W. 536 (1926). The same offense means the identical criminal act, not the same offense by '. . . 'One pleading former acquittal or c......
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Hamilton v. State, 13284.
...pleaded. Samuels v. State, 25 Tex. App. 537, 8 S. W. 656; Lindley v. State, 57 Tex. Cr. R. 346, 123 S. W. 141; Stevenson v. State, 106 Tex. Cr. R. 111, 290 S. W. 536; Faubion v. State, 104 Tex. Cr. R. 90, 282 S. W. 599. Moreover, it seems plain that the two offenses are not the same, though......