Whitten v. State
| Decision Date | 04 April 1923 |
| Docket Number | (No. 7455.) |
| Citation | 250 S.W. 165 |
| Parties | WHITTEN v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Red River County; George Morrison, Special Judge.
Jess Whitten was convicted of unlawful possession of intoxicating liquor, and he appeals. Reversed and remanded.
Travis T. Thompson, of Clarksville, for appellant.
R. G. Storey, Asst. Atty. Gen., for the State.
The conviction is for the unlawful possession of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.
From the state's testimony, it is made to appear that the appellant possessed one quart of whisky and sold it to the state witness Jacobs. Appellant testified and denied the transaction, but said that he had been indicted and convicted for the sale of the same liquor to the witness Jacobs.
Appellant entered a plea of former conviction, which the court refused to submit to the jury. As we understand the plea and the evidence, there was but one transaction. The state, having carved out of this transaction the offense of the unlawful sale of the liquor and having secured a conviction for that offense, is precluded by that judgment from carving another offense out of the same transaction. This principle is stated by Presiding Judge White of this court in the case of Simco v. State, 9 Tex. App. 348, and again in Wright's Case, 17 Tex. App. 158, with the utmost clearness. In the cases mentioned the distinction between the plea of former acquittal and former conviction and the facts upon which they must each rest is thus stated:
Because of the error pointed out, the judgment is reversed, and the cause remanded.
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Nichols v. State
...proof of one necessarily establishes the other, and the conviction of one bars a prosecution for the other. See Whitten v. State, 94 Tex. Cr. R. 144, 250 S. W. 165. The proof which shows the manufacture of intoxicating liquor frequently necessarily reveals its possession; proof of the sale ......
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Doggett v. State
...A recent example of the application of the rule is shown in the reversal of the judgment of conviction in the case of Whitten v. State, 94 Tex.Cr.R. 144, 250 S.W. 165, in which it was "The state, having carved out of this transaction the offense of the unlawful sale of the liquor and having......
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Stevenson v. State
...is exemplified in many judicial announcements. See Simco v. State, 9 Tex. App. 348; Wright v. State, 17 Tex. App. 158; Whitten v. State, 94 Tex. Cr. R. 144, 250 S. W. 165; Coon v. State, 97 Tex. Cr. R. 647, 263 S. W. 914; Colter v. State, 94 Tex. Cr. R. 96, 252 S. W. 168; Plunk v. State, 98......
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Winkler v. State
...single, continuing criminal act. This case, however, cannot be reconciled with later federal cases hereinafter cited. Whitten v. State, 94 Tex. Cr. R. 144, 250 S. W. 165, held that after a conviction for an unlawful sale of intoxicating liquor there cannot be a subsequent prosecution and co......