
    Herman O’Rear v. The State.
    No. 21939.
    Delivered February 18, 1942.
    Thé opinion states the case.
    
      Reid & Reid, of Abilene, for appellant.
    
      Spurgeon E. Bell, State’s Attorney, of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted by a jury for the offense of having in possession intoxicating liquor, and, upon charges of three prior offenses of a like nature, assessed a penalty of eight months in jail.

The record is before us upon an agreed statement of facts, a careful checking of which discloses that the State did not at any time show that appellant was 'in possession of any beer, and, consequently, the elements of the offense charged are lacking.

It is also set out in their agreed statement of facts that the allegation of a prior conviction, “In Cause No. 10,631 was improperly used by the State as a prior conviction as a basis to enhance punishment and should not have been so used for the reason that the offense in Cause No. 10,631 * * * * * was committed prior to the offense for which defendant stood trial in this Cause No. 10,632.” We also understand that the plea of guilty in 10,631 was subsequent to the date of the offense as alleged in the case before us. That being true, it should not be utilized by the State upon another trial.

For the failure of the record to show the elements of the offense, the judgment of the. trial court is reversed and the cause remanded.  