Waltrip v. State, 19361.

• Decision Date: 03 March 1938
• Docket Number: No. 19361.,19361.
• Citation: 114 S.W.2d 555
• Parties: WALTRIP v. STATE.
• Court: Texas Court of Criminal Appeals

Page 555

114 S.W.2d 555

WALTRIP v. STATE.

No. 19361.

Court of Criminal Appeals of Texas.

March 3, 1938.

State's Rehearing Denied March 23, 1938.

Appeal from Taylor County Court; Lee R. York, Judge.

J. M. Waltrip was convicted for the possession of intoxicating liquor for the purpose of sale, and he appeals.

Reversed and remanded.

Martin & Shipman, of Abilene, for appellant.

Esco Walter, Co. Atty., of Abilene, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

HAWKINS, Judge.

Conviction is for possession of intoxicating liquor for the purpose of sale; punishment being assessed at $100 fine and 60 days' confinement in the county jail.

It was charged against appellant in the first count of the complaint and information that in Taylor county, Tex., he unlawfully possessed for the purpose of sale whisky containing in excess of one-half of one percentum of alcohol by volume.

It was further alleged in language which we think sufficient that an election had been held in said county in 1911, which prohibited the sale of intoxicating liquor in Taylor county. Appellant assailed the State's pleadings upon the ground that the averments as to the present status of prohibition in said county were not sufficient. We are not inclined to think there is merit in said complaint.

After alleging the present offense, it was averred in the State's pleadings that, "prior to the commission of the aforesaid offense by the said J. M. Waltrip, to-wit: on the 26th day of April, 1937, in the County Court of Taylor County, Texas, the said J. M. Waltrip was duly and legally convicted in said last named court of an offense of like character as that hereinbefore charged against him in this cause, upon information pending in said last named court, and of which the said court had jurisdiction and which judgment of conviction is a final judgment." There is no further description of the offense of which appellant had been previously convicted than the statement that it was "an offense of like character." Appellant called the court's attention to said pleading in a motion to quash or suppress that part of the complaint and information, and the same should have been sustained. It is not necessary in charging prior convictions for the purpose of enhancing the punishment that they be averred with the same particularity as is required in charging the present offense, but they must be described in such a way as to advise the court that the prior conviction was an offense of like character to the one for which appellant is then being tried, and simply to so allege without more particularly designating the prior offense is purely a conclusion of the pleader. See 12 Tex.Jur., § 405, page 797, where many cases will be found annotated, and especially the case of Hail v. State, 106 Tex.Cr.R. 511, 293 S.W. 831.

The court permitted proof of the prior conviction, and same was used as a predicate for the jury to increase the punishment in the present case. This error itself demands a reversal of the judgment.

On the evening of May 28, 1937, an officer had in his possession a warrant authorizing the search of a filling station. Before searching the filling station the officer followed appellant to his home. As appellant entered the driveway with his car, the officer drove in behind him and saw appellant breaking bottles in his car, and found therein the remains of three or four bottles of whisky, and found one full bottle of whisky unbroken in the car. Appellant lived some seven blocks from the filling station. The officer had no warrant for appellant's arrest, and no search warrant for the car or for appellant's home, or the...