Thweatt v. State

• Decision Date: 25 April 1906
• Parties: THWEATT v. STATE.
• Court: Texas Court of Criminal Appeals

95 S.W. 517

THWEATT v. STATE.

Court of Criminal Appeals of Texas.

April 25, 1906.

Appeal from Milam County Court; R. B. Pool, Judge.

D. T. Thweatt was convicted of giving away whisky on election day, and he appeals. Reversed and prosecution ordered dismissed.

Chambers & Sharp, for appellant. J. E. Yantis, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of giving away whisky on an election day.

Motion is made to quash the complaint and information because of their failure to set out the necessary averments, under section 120, c. 101, p. 154, Acts 28th Leg. known as the Terrell election law. We quote that section, which provides: "If any person shall open or keep, open any bar room, saloon or wholesale liquor house, where vinous, malt or spirituous or intoxicating liquors are sold, during any portion of an election day, in any voting precinct, town or city, where such election is held," etc., "he shall be punished, * * * provided such liquor may be sold on election day by a drug store to fill a prescription of a physician, who shall at the time certify in writing on honor that it is needed by his sick patient," etc. Motion was made to quash the complaint and information, specially because it did not negative the provisos set out in the statute. In Fleeks v. State, 83 S. W. 381, this question was decided by this court as contended for by appellant, and this language is there used: "It is necessary under the new law to negative the provisos therein contained as it is contained in the enacting clause of the statute." The charging part of the information was that appellant did, on the election day, give away whisky to Hilliard Washington, and did then and there inform said Hilliard Washington and others, to wit, Frank Vaughan, Will Casper, H. R. Williams, and J. M. Sledge, of the whereabouts of whisky at and near the polls of said voting "precinct No. 5." It is urged this is defective, in that it combined different offenses in the same count. Without going into a discussion of the matter at length, this record shows that if appellant gave whisky to Hilliard Washington, or informed him where he could find it, it was an entirely different transaction from those mentioned in regard to the other named parties. If he informed one or more of those parties in regard to where whisky could be found, it was not at the same time and place, and constituted different transactions. He further met this phase of the case, after the testimony was in, by asking the court to require the state to elect upon which transaction it would rely for a conviction. This was refused, and an exception taken. We believe that the motion to quash should have been sustained, and unquestionably, after the facts were introduced, the motion to elect was properly made. It is a rule familiar to criminal pleadings that, where a statute sets out that an offense may be committed in...