Lewis v. State , 124 Tex. Crim. 582 ( 1933 )

Notwithstanding the judgment was reversed on original submission appellant has filed a motion for rehearing, among other things, urging that the indictment should be held invalid and the prosecution thereunder ordered dismissed. Having in mind the necessity of reversing the judgment for the error pointed out in our original opinion the challenge to the indictment did not at that time receive critical consideration. The indictment in the present case is not unlike that held bad in Remmert v. State, 60 S.W.2d 233.

We believe that by reason of the language employed therein article 365, P. C. (copied in our original opinion) defines three distinct offenses instead of specifying three ways in which a particular offense might be committed, the three offenses defined being: (a) The collection by an officer of pay for some act for the doing of which no fee is allowed by law; (b) the collection by an officer for a service or act not in fact performed, (c) collection by an officer of higher fees than allowed by law for a particular service. After defining the three foregoing offenses the article in question says the person offending shall be punished in the manner provided"for each offense," thereby making said article subject to the construction that the Legislature had in mind that the same penalty should attach to "each" of the three offenses named in said article. It follows that an indictment which seeks to charge an officer for a violation under said article should contain averments in such definite and specific language that it could be known therefrom which one of the three offenses accused was called upon to answer. If we are correct in the conclusion that in said article 365, three separate felonies are defined, and not three ways of committing one offense, it necessarily follows that an indictment which in one count undertakes to charge accused with committing more than one of such offenses is subject to attack for duplicity. (For distinction drawn and general discussion of the subject see Texas Jurisprudence, vol. 23, pages 652-662, with citation of many authorities).

The indictment in the present case was attacked in limine for duplicity, and the point properly brought forward.

In a general way it is alleged in the indictment that appellant collected "higher fees than are allowed by law in this, to-wit: "* * * then follows averments from which it appears that appellant had collected a sum named for the arrest and transportation of six men from Dallas, Texas, to Caldwell, Texas, when in fact he did not arrest and transport but two men; that he had transported the two men at the same time, but collected double mileage, or "higher fees," that he was entitled to for such service, and for the other men not transported he had collected for a purported service not in fact performed, thus in one count charging the commission of two of the felonies denounced in article 365.

Believing the indictment bad for duplicity, appellant's motion for rehearing is granted to the extent of incorporating what we have here said as additional reasons for the reversal of the judgment, and as a ground for ordering a dismissal of further prosecution under the present indictment.

Rehearing granted.