Nichols v. State

196 S.W.2d 925, 149 Tex. Crim. 530, 1946 Tex. Crim. App. LEXIS 855

• Court: Court of Criminal Appeals of Texas
• Decided: October 23, 1946
• Docket: No. 23409.
• Status: Published

Opinion

DAVIDSON, Judge.

The unlawful possession of whisky for the purpose of sale in a dry area is the offense; the punishment, a fine of $100.00. '

Prior to announcing ready for trial, appellant filed a motion for severance, asking that one K. P. Jones — who was then under separate accusation for an offense growing out of the same transaction as that charged against appellant — be first tried. The motion complied with the statutory prerequisites. (Art. 651, C. C. P.)

Appellant’s exception to the action of the trial court in overruling the motion is preserved by a proper bill of exception, unqualified and unexplained by the trial court.

Under the facts stated, appellant was entitled to the severance and the motion should have been granted. Willis v. State, 141 Tex. Cr. R. 297, 148 S. W. (2d) 397.

In the absence of explanatory testimony, we are unable to see the materiality of the figures and notations found in a small book' upon appellant’s person after arrest. This suggestion is made in view of another trial:

For the error in overruling the motion for severance, the judgment of the trial court is reversed and the cause remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.