Wimberley v. State

• Decision Date: 21 March 1923
• Docket Number: (No. 7285.)
• Citation: 249 S.W. 497
• Parties: WIMBERLEY v. STATE.
• Court: Texas Court of Criminal Appeals

249 S.W. 497

WIMBERLEY v. STATE.

(No. 7285.)

Court of Criminal Appeals of Texas.

March 21, 1923.

Appeal from District Court, Llano County; J. H. McLean, Judge.

Willie Wimberley was convicted of manufacturing and having in possession intoxicating liquor, and appeals. Reversed and remanded.

T. H. McGregor and A. L. Love, both of Austin, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

The indictment contained two counts; the first charged appellant with the manufacture of intoxicating liquor, and the second charged possession thereof for the purpose of sale. Both counts were submitted to the jury. The verdict specifically finds appellant guilty under both counts, the judgment condemns him guilty of two felonies, to wit, manufacture and possession for sale of intoxicating liquor, and the punishment assessed is two years in the penitentiary.

Where appellant makes no protest at being convicted for more than one felony under the same indictment as in Blackwell v. State, 51 Tex. Cr. R. 24, 100 S. W. 774, this court would not feel called upon to raise the question on its own motion. But such procedure is so fundamentally erroneous that it calls for review when raised at almost any time. After verdict the court's attention was called to the matter by a motion denominated one in arrest of judgment. It is not necessary to stop to inquire whether the motion was properly named. It attacks the verdict and judgment from many angles, but all based upon the idea that the state is not entitled to conviction for two separate felonies upon one trial under the same indictment. Upon the motion being overruled, the complaint was again presented in the motion for new trial. That an error has been committed which demands a reversal there can be no doubt. Keeler v. State, 15 Tex. App. 111; Crawford v. State, 31 Tex. Cr. R. 51, 19 S. W. 766; Miller v. State, 16 Tex. App. 417; Carr v. State, 36 Tex. Cr. R. 3, 34 S. W. 949. In the recent case of Banks v. State (Tex. Cr. App.) 246 S. W. 377, the foregoing cases are reviewed, and many others cited, and the doctrine announced reaffirmed. To the same effect, also, see the two cases of Knott v. State (Nos. 7220 and 7223) 247 S. W. 520, 522, recently decided.

B. M. Mays was the prosecuting witness. Appellant is his nephew. Witness had been on a visit to his relatives, the Wimberleys. He reported to the officers about the alleged whisky manufacture, which resulted in not only appellant, but several other of witness' relatives, being indicted. On direct examination...