Vrazel v. State , 90 Tex. Crim. 162 ( 1921 )

The State moves a rehearing. The ground of the motion is that manufacturing liquor and possessing liquor, though made separate offenses by the Dean act, necessarily involve each other; and in such case two separate and distinct offenses may be charged in the same count. Nicholas v. State, 23 Texas Crim. App., 317, 5 S.W. Rep., 241; State v. Randle, 41 Tex. 292; and Prendergast v. State, 41 Tex.Crim. Rep., are cited as supporting the State's position. In the Nicholas case no motion to quash for duplicity was made before judgment, and the court held it came too late afterward, the opinion indicating grave doubt as to the sufficiency of the indictment. In both the Randle and Prendergast cases it was charged that the accused established a lottery, and by means of said lottery disposed of certain property. Judge Devine, in the Randle case, says:

"The establishing of the lottery, as charged in the indictment, was merged in the disposing of certain property by reason of the lottery thus established. It is, in truth, taking the indictment together, but a charging of one offense."

And Judge Henderson, in the Prendergast case, says:

"While it is true they are distinct offenses, yet they are different phases of the same transaction, and not repugnant to each other. Duplicitous or repugnant matter will not be tolerated in the same count."

The Randle case, supra, further quotes the rule as follows:

"Where the offenses are of a distinct nature, neither of them capable of being resolved into the other, it is error to join them in the same count. Where they are several in their nature, and yet of such a character that one of them, when complete, necessarily implies the other, there is no such repugnancy as to make their joinder improper. In fact, under such circumstances, it is less embarrassing to the defendant to be thus charged than to have each stage of the offense split from the context and set in a distinct count. (2 Whart. Preced. of Indict. and Pleas, 834.)"

If this text used the word "each" instead of the word "one," if appears to us that same would more nearly state a correct rule in regard to the exception set forth.

We do not doubt that liquor may be manufactured by one not in manual possession thereof, and certainly liquor may be possessed by one who had nothing to do with its manufacture, and we are of the opinion that each of these offenses does not necessarily involve the other.

The motion will be overruled.

Overruled.