Warner v. State, 14280.

• Decision Date: 24 June 1931
• Docket Number: No. 14280.,14280.
• Citation: 42 S.W.2d 616
• Parties: WARNER v. STATE.
• Court: Texas Court of Criminal Appeals

42 S.W.2d 616

WARNER v. STATE.

No. 14280.

Court of Criminal Appeals of Texas.

June 24, 1931.

Rehearing Denied October 28, 1931.

Appeal from District Court, Hill County; Walter L. Wray, Judge.

Henry Warner was convicted of possessing intoxicating liquor for purposes of sale, and he appeals.

Affirmed.

John E. Clarke, of Hillsboro, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, five years in the penitentiary.

Article 62, P. C., and the authorities construing it, provide that if one charged with a felony less than capital be also properly charged with having been convicted at some time prior to the commission of the last offense, of another felony which is "the same offense, or one of the same nature," he shall receive the highest penalty which can be affixed for the offense last committed. Appellant was charged with possessing intoxicating liquor for purposes of sale, and it was alleged that at a prior time he had been convicted of the offense of selling intoxicating liquor. The state's theory evidently was and is that the two offenses charged were the same or of the same nature. Appellant contends that they are not. The question is somewhat difficult and important.

In Muckenfuss v. State, 55 Tex. Cr. R. 216, 117 S. W. 853, a misdemeanor case, this court held, in substance, that all offenses involving a violation of the sanctity of the Sabbath were "the same offense," whether they be keeping a theater open on Sunday, horse racing on Sunday, selling goods on Sunday, etc. Entertaining the greatest respect for the eminent judge who wrote in that case, we think it wrong to lay down the rule that offenses possessing only a single element of sameness are therefore the same or of the same nature; and we think our opinion went too far in what we said approving the Muckenfuss Case, in Strickland v. State, 115 Tex. Cr. R. 410, 28 S.W.(2d) 818. Every rape, equally with every murder, is based on a necessary assault. Every bigamy and every swindling proceeds on the basic theory of fraud, but it would not do at all to say that these were therefore the same offenses, or offenses of the same nature.

It is the duty of the Legislature to define every crime, and make the definition clear, and to avoid matters of doubtful construction. Article 6, P. C. It is our opinion that the two expressions used in said article 62, supra; viz.: "The same offense" and "of the same nature," evidence merely the purpose of the Legislature to provide the higher punishment for him who so far approaches the attitude of an habitual criminal, as to follow one conviction by doing that which in substance, nature, and effect is the same offense, and that, though there be some differences, still the substance of the offense, the body of the crime, its collective elements, must be so nearly similar or identical as to justify the higher punishment as for the same offense as that formerly committed. As for instance, the subsequent taking from another of his property without his consent, in any of the ways forbidden by statute, might be deemed so similar or identical as to justify pleading and...