Walton v. State, 27778
| Decision Date | 30 November 1955 |
| Docket Number | No. 27778,27778 |
| Parties | Leport WALTON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Power, McDonald & Mell, By Warren McDonald, and Milton Greer Mell, Tyler, for appellant.
Harry Loftis, Crim. Dist. Atty., Weldon G. Holcomb, Asst. Dist. Atty., Tyler, Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The offense is the unlawful possession of whisky and beer for the purpose of sale in a dry area with two prior convictions alleged to enhance the punishment; the penalty, eighteen months in jail and a fine of $600.
In view of our disposition of the case, a statement of the facts is deemed unnecessary.
Appellant contends that the second and third counts of the information are fatally defective because they do not purport to have been presented into the court by the prosecuting attorney.
The information contains three paragraphs.
Paragraph No. 1, in charging the primary offense, begins with the following language:
'I, Weldon G. Holcomb, Asst. Criminal District Attorney of Smith County, State of Texas, here in the County Court of said County present that heretofore, to-wit,' etc.
Paragraphs 2 and 3, in charging the two prior convictions for enhancement purposes, begin with the following statement:
'And I, Weldon G. Holcomb, Assistant Criminal District Attorney, do further solemnly swear that I have good reason to believe and do believe:' etc.
The court, in his charge, submitted to the jury the issue of appellant's guilt of the primary offense as charged in Paragraph No. 1 and whether he had been previously finally convicted of the two offenses alleged in Paragraphs 2 and 3, and authorized them to enhance the punishment if they so found. The jury returned a general verdict under the court's instructions.
We think that the second and third paragraphs of the information are fatally defective because they do not appear to have been presented by the prosecuting attorney, and for such reason the conviction cannot stand.
Subdivision 3 of Art. 414, Vernon's Ann.C.C.P., in setting out the requirements for a sufficient information, provides 'That it appear to have been presented by the proper officer.'
In the early cases of Zinn v. State, 68 Tex.Cr.R. 149, 151 S.W. 825, and Compton v. State, 71 Tex.Cr.R. 7, 158 S.W. 515, the rule was announced that each count of the information must be shown to have been presented by the prosecuting attorney and that language similar to that contained in Paragraphs 2 and 3 of the information in the case at bar, was insufficient to show that such count was presented.
In the case of Martin v. State, 142 Tex.Cr.R. 623, 156 S.W.2d 144, the accused was convicted under an information which charged him with a violation of the liquor law and further alleged a prior conviction of an offense of like character to enhance the...
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