Todd v. State

• Decision Date: 16 February 1921
• Docket Number: (No. 5917.)
• Citation: 229 S.W. 515
• Parties: TODD v. STATE.
• Court: Texas Court of Criminal Appeals

229 S.W. 515

TODD v.STATE.

(No. 5917.)

Court of Criminal Appeals of Texas.

February 16, 1921.

Rehearing Denied March 30, 1921.

Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

W. R. Todd was convicted of a violation of the Dean Liquor Law, and he appeals.Reversed, and cause dismissed.

Herbert Scharff, John McNamara, and Williams & Williams, all of Waco, for appellant.

Frank B. Tirey, Co. Atty., of Waco, Frank Fitzpatrick, Asst. Co. Atty., of Waco, C. M. Cureton, Atty. Gen., and C. L. Stone and Alvin M. Owsley, Asst. Attys.Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of McLennan county of a violation of the Dean Liquor Law (Laws 1919 [1st & 2d Called Sess.]c. 78), and his punishment fixed at one year in the penitentiary.

The conviction was had under the second count in the indictment, the charging part of which was as follows:

"W. R. Todd did receive, transport, export, and deliver and solicit and take orders for and did furnish spirituous, vinous and intoxicating liquors," etc.

A motion to quash this count in the indictment upon the ground that it was vague and indefinite, failed to particularize the offense charged, and combined in the same count a number of separate and distinct felonies, naming them, was overruled.We are of opinion that said motion was meritorious.The authorities are not quite clear as to those cases in which offenses of different nature may be charged in the same count, but all of them seem to agree that offenses not involving each other may not be so charged.2 Wharton, Precedent of Indictment and Pleas, p. 834, says:

"Where offenses are of a distinct nature, neither of them capable of being resolved into the other, it is error to join them in the same count."

In the instant case it must be admitted that each of the things mentioned in the said count, to wit, transporting, exporting, delivering, soliciting, taking orders for, possessing, furnishing, are separate felonies, and, while some of them may involve some of the others, this is not true of all of them.For instance, possession is involved in most of the others, but clearly transporting and exporting do not involve soliciting; taking orders for does not involve exporting; receiving does not involve delivering.In Beaumont v. State, 1 Tex. App. 537, 28 Am. Rep. 424, it is held that an indictment which produces confusion and uncertainty as to what offense was really intended to be charged, and in one count of which two distinct offenses are charged, is bad.In Brown v. State, 38 Tex. Cr. R. 597, 44 S. W. 176, this court said:

"Duplicity consists of alleging, in one count, separate and distinct felonies."

In Ferguson v. State, 189 S. W. 271, Judge Prendergast for this court held an indictment bad in which three separate and distinct felonies were set out in one count.In Vernon's C. C. P. § 17, under article 481, occurs this statement, supported by many citations:

"Duplicity is the joinder of two or more distinct offenses in one count, and, if it be such as to produce confusion and uncertainty as to what was intended to be charged, it would vitiate the indictment."

Substantially the same rule is announced in Branch's Ann. Penal Code, § 506.Applying what has been said to the instant indictment, it would appear that transporting is a separate and distinct act as well as felony from soliciting; that exporting is likewise separate and distinct from taking orders for; that receiving intoxicating liquors is a separate and distinct act and felony from delivering same; and that charging one with each and all of these acts in one count would necessarily lead to confusion and uncertainty.One accused of crime is presumed innocent, and one office of an indictment is to apprise him of that which he must meet in court as the charge against him.We do not think he could be so informed by the indictment in the instant case.

Believing the indictment fatally defective, we forego discussion of the other questions raised, and for said defect the cause will be reversed and dismissed.On Motion for Rehearing.

In an able motion for rehearing presented by Hon. Frank B. Tirey, county attorney of McLennan county, the state advances four propositions.The first is that embraced in article 476, Vernon's C. C. P., which is that, unless the substantial rights of a defendant are prejudiced, the trial, judgment, or other proceedings based on an indictment shall not be affected by reason of any defect or imperfection of form, and that the insertion in the indictment of allegations of other offenses presents no error if the trial court in his charge to the jury omits the submission of all such offenses save that one which he thinks supported by the testimony.

To charge a number of separate, distinct felonies in one count in an indictment is not a matter of form, but of substance.The constitutional right to demand the nature and cause of the accusation against a defendant, as set forth in section 10 of the Bill of Rights, guarantees to the accused that the indictment shall state every fact and circumstance necessary to a certain, specific, and complete description of the particular offense imputed to him.Harris' Ann. Constitution, § 10, p. 83, and collated authorities.An offense is but one act or omission forbidden by positive law.Article 53, P. C. Texas.Assuredly there is no certain, specific, complete description of a particular offense in an indictment which in one count names and charges conjunctively against the accused all those felonies set forth in section 1 of the act in question, which is commonly called the Dean Act.Nor could the fact that the trial court limited the jury's consideration to only one of the felonies so charged be invoked in aid of or as minimizing the error of refusing to quash a multifarious or duplicitous indictment.The error of the indictment is material injury before the matter of the charge of the court is reached in the trial.Article 460 of our C. C. P. is as follows:

"An indictment for any offense against the penal laws of this state shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment; and in no case are the words `force and arms' or `contrary to the form of the statute' necessary."

From the indictment, which is the common-law bill of particulars, the accused must be able to learn with reasonable certainty what is that charge upon which he will be called to answer upon arraignment.Is it to be manufacturing or selling liquor, transporting, exporting, or delivering same, or is it to be soliciting, taking, orders for or furnishing such liquor?Each of these is a separate offense, and proof of no one of them involves any of the others.The offense of manufacturing is complete and may end before any of the others occur.So of the selling, transporting, soliciting, etc.These propositions seem so self-evident as that we discuss them no further.

We next come to consider another proposition insisted upon, which is that, when several ways are set forth in the same statute by which an offense may be committed, and all are embraced in the same definition, and made punishable in the same way they are not distinct offenses, and may be charged conjunctively in the same count.

We are in accord with the principle thus stated, but not with its application to the instant case.Bearing in mind that the expression "an offense," as just used, means one offense, as defined in article 53 of our Penal Code, appellant's proposition may be restated as follows: When the definition of one offense in the statute embraces several ways in which same may be committed, all punishable alike, these several ways may be charged conjunctively in the same count in an indictment.Can this proposition be applied in any way to the statute under consideration?Is there in either section 1 or section 2 of the Dean Act any definition of an offense embracing several ways in which same may be committed?If so, we are unable to find same.If it be contended that...