Lee v. State

235 S.W. 1093, 90 Tex. Crim. 458, 1921 Tex. Crim. App. LEXIS 186

Opinion

LATTIMORE, Judge.

Appellant was convicted in the District Court of Upshur County of possessing intoxicating liquor under what is known as the Dean Law, and his punishment fixed at confinement in the penitentiary for a period of one year.

There were two counts in the indictment. One charged the unlawful sale of intoxicating liquor, and the. other the unlawful possession of such liquor. By the charge of the court the jury’s consideration was limited to a finding upon the offense charged in the second count of said indictment. . This was tantamount to an acquittal of the offense charged in the first count. Betts v. State, 60 Texas Crim. Rep., 631; Hewitt v. State, 74 Texas Crim. Rep., 46, 167 S. W. Rep., 40. The offense of possessing intoxicating liquor as defined by the Dean Law prior to the amendment of the recent Called Session of the Thirty-seventh Legislature, was so changed as to amount to a repeal of the former law. Cox v. State, 90 Texas Crim. Rep., 256, No. 6423, and Petit v. State, 90 Texas Crim. Rep., 336, No. 6510, decided at the present term and not yet reported. This necessitates the reversal and dismissal of this cause.

For the reasons stated the judgment is reversed and the cause ordered dismissed.

Reversed and dismissed.