Ortez v. State

276 S.W. 236, 101 Tex. Crim. 471, 1925 Tex. Crim. App. LEXIS 849

• Court: Court of Criminal Appeals of Texas
• Decided: June 24, 1925
• Docket: No. 9334.
• Status: Published

Opinions

LATTIMORE, Judge.

Appellant was convicted in the district court of Kaufman County for the possessing of mash, a still and equipment for the purpose of manufacturing spirituous, vinous and intoxicating liquor, and his punishment fixed at one year in the penitentiary.

Appellant filed a motion in arrest of judgment, no motion to quash having been made. The motion came too late. Melley v. State, 93 Tex. Crim. Rep. 522. The motion in arrest suggests that the judgment is not legal because the indictment is insufficient in that it charges two separate and distinct offenses in one and the same count. The bill of exceptions complaining of the overruling of this motion is the only one appearing in the record. We perceive no merit in the motion. The indictment charg-ed that, “Jose Ortez * * * in the County of Kaufman and State of Texas, did then and there unlawfully possess mash and a still and equipment for the purpose of manufacturing spirituous, vinous and intoxicating liquor”, etc. This apparently charges one transaction and hence only charges one offense. There is no statement of facts in the record.

We observe that the judgment and sentence recite that appellant is adjudged guilty and sentenced for manufacturing intoxicating liquor. Such carelessness is unexcuseable. The court submitted only the second count in the indictment charging the possession of said material. The count charging manufacturing was not submitted. The judgment and sentence will be reformed so as to adjudge and sentence appellant to be guilty of possessing mash, a still and equipment for manufacturing intoxicating liquor, and as so reformed the judgment will be affirmed.

Affirmed.