
    COLTER v. STATE.
    (No. 7499.)
    (Court of Criminal Appeals of Texas.
    March 28, 1923.
    State’s Rehearing Denied May 30, 1923.)
    Criminal law &wkey;>200(4)— One may possess liquor for purpose of sale and by selling it be guilty of a second offense, or he may not.
    One may possess liquor for the purpose of sale and by selling it become amenable to prosecution for two offenses, as regards plea of former jeopardy, but under the facts of a given case the possession of intoxicating liquor and its sale may constitute but one transaction, and it would be error, in a prosecution for unlawful possession, to sustain an exception to a plea of former conviction of unlawful sale based on the identical facts relied on in the instant case.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Randall Colter was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed and remanded.
    Wynne & Wynne, of Kaufman, for appellant.
    H. R. Young, Co. Atty., of Kaufman, and R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for the unlawful possession of intoxicating liquor.

Appellant presented a plea of former conviction in which it was averred that, based upon the identical facts and evidence relied upon by the state in the instant case, he had been convicted of the sale of intoxicating liquor. The court sustained the exception to the plea on the theory that, as a matter of law, the possession of intoxicating liquor, for the purpose of sale and the sale of the same liquor embraced, in all cases, two offenses. One may possess liquor for the purpose of sale and by selling the liquor become amenable to prosecution for two offenses. Todd v. State, 89 Tex. Cr. R. 99, 229 S. W. 515. In other words, the possession for the purpose of sale' may constitute one independent offense and the sale another. The two do not necessarily constitute the same offense. Smith v. State, 90 Tex. Cr. R. 273, 234 S. W. 893. They may, under the facts of a given case, constitute but one transaction, namely, the sale and the coincident possession. When the evidence pertinently and cogently presents such a theory, the court should respond to proper efforts upon the part of the accused to have the jury determine whether the prior conviction was for the same or for a different act. In the instant case, judging by the recitals in his judgment striking out appellant’s plea of former conviction, the court rejected the idea that possession and sale might, in any case, constitute but a single offense. We entertain a contrary opinion, and believe that in sustaining the exception to the plea of former acquittal the learned trial judge was in error. The appellant should have been permitted to read the plea to the jury, and, if there were facts sustaining it, the question of its truth should have been left to the jury under appropriate instructions. The cases of Chandler v. State, 89 Tex. Cr. R. 297, 299, 231 S. W. 108-110, are not opposed to this conclusion.

Because of the error mentioned, the judgment is reversed and the cause remanded. 
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