Cothren v. State

BEAUCHAMP, Judge.

Appellant was convicted in the County Court of San Saba County for violation of the liquor laws and was fined $300.00 by a jury verdict. From the judgment based on this verdict he appeals.

It is alleged in the information in the case that appellant sold one pint of whisky and three cans of beer to John M. Henderson. It is further alleged that he was convicted in Cause No. 1744 in the County Court of San Saba County on November 30, 1938, of a similar offense and upon this allegation and proof of conviction and final judgment the court submitted the evidence to the jury for the purpose of enabling them to enhance the penalty.

It is shown by bill of exception number one that on a previous day appellant had been convicted of another sale of whisky and that the complaint and information contained a clause alleging the same sale, conviction and final judgment in Cause No. 1744, San Saba County, on November 30, 1938, and the prosecution obtained against appellant an enhanced penalty because of this same former conviction. The submission of this evidence to the jury was timely objected to and here presented as error.

The same conviction cannot be twice used for the purpose of enhancing a penalty. This has been so frequently held by this court and in recent cases that we do not consider it necessary to here discuss the matter or cite authorities.

The other errors complained of will probably not arise upon another trial and for that reason are not considered.

The judgment of the trial court is reversed and remanded for a new trial.