
    KOCICH v. STATE.
    (No. 7095.)
    (Court of Criminal Appeals of Texas.
    Feb. 7, 1923.
    On Motion for Rehearing, March 21, 1923.)
    1. Indictment and information &wkey;>202(8)— That indictment is duplicitous cannot be raised for first time after verdict.
    The objection that an indictment is duplicitous cannot be made for first time after verdict. '
    On Motion for Rehearing.
    2. Criminal law <&wkey;980(I) — Testimony on plea of guilty held not legal evidence, contemplated by statute.
    In a prosecution for unlawfully selling intoxicating liquor, where accused pleaded guilty, and the only evidence introduced was to the effect that accused was sane, and from .'hearsay the sheriff indicated he (the sheriff) was in possession of whisky which had been obtained from accused! but disclaimed having obtained it from accused, held, that there was no legal evidence offered of the crime charged, such as was authorized to go before the jury-as required by Code Cr. Proc. 1911, art. 566.
    Appeal from District Court, Bell County; M. B. Blair, Judge.
    Prank Kocich was convicted of unlawful sale of intoxicating liquor, and he appeals.
    Judgment reversed, and cause remanded.-
    De Witt Bowmér, of Temple, for appellant.
    R. G. Storey, Asst. Atty. Gen,, for the State.
   MORROW, P. J.

Conviction is for the unlawful sale of intoxicating liquor; punishment fixed at confinement in .the penitentiary for one year. The indictment charged that' the appellant:

“did then and there unlawfully and not for medicinal, mechanical, scientific, or sacramental purposes, and not for any of these purposes, sell and deliver to S. B. Dillingham, one quart of whisky,” etc.

In a motion in arrest of judgment, appellant asserts, for the first time, that the 'indictment" was duplicitous in that it charged two offenses, námely, the sale of intoxicating liquor and the delivery' of intoxicating liquor.

Without discussing the merits of the contention that the indictment is duplicitous; we are constrained to hold that the criticism of the indictment is one that cannot be made for the first time after verdict. This subject has been discussed in some detail in the case of Melley v. State, No. 7185, 248 S. W. 367, not yet [officially] reported, in which it is held that under the statute (articles 875, 849, and 850, Code of Crim. Proc.) complaint of a duplicitous indictment is not available, except on motion to quash the indictment. See, also, Osborne v. State (Tex. Cr. App.) 245 S. W. 928.

The judgment is affirmed.

On Motion for Rehearing.

Touching the sufficiency of the indictment,- we adhere to the announcement made in the original opinion. We failed, however, to notice the attack upon the conviction upon the ground that no evidence was introduced. The statute upon the subject reads thus:

“Where a defendant in a case of felony persists in pleading guilty, if the punishment of the offense is not absolutely fixed by law, and beyond the discretion of the jury to graduate in any manner, a jury shall be impaneled to assess the punishment, and evidence submitted to enable them to decide thereupon.” (Article 566, C. C. P.)

The construction of the statute in Vernon’s Crim. Stat., vol. 2, p. 289, is thus stated:

“This article is mandatory, and it is fundamental error to disregard it. In so far as it requires evidence to be submitted, it is not intended solely for the benefit of the defendant, but is also intended to protect the interests of the state, by preventing aggravated cases .of crime from being covered up by the plea of guilty, so as to allow the criminal to escape with the minimum punishment fixed by law. This provision of the statute should be fully observed and administered, and the proper practice is to .have the judgment entry show affirmatively that evidence was adduced upon the plea of guilty. Harwell v. State, 19 App. 423; Paul v. State, 17 App. 583; Turner v. State, Id. 587; Saunders v. State, 10 App. 336; Walace v. State, Id. 407; Frosh v. State, 11 App. 280; Scott v. State, 29 App. 217, 15 S. W. 814; Johnson v. State, 39 App. 625, 48 S. W. 70; Josef v. State, 33 App. 251, 26 S. W. 213; Evers v. State, 32 App. 283, 22 S. W. 1019; Hopkins v. State (Cr. App.) 68 S. W. 986; Sullivan v. State, 47 App. 615, 85 S. W. 812; Woodall v. State, 58 App. 513, 126 S. W. 591.”

The Supreme Court of Michigan, in discussing a similar statute, uses this language:

“The statute invoked is a beneficient one, and was designed alike for the protection of the prisoner and the public against the imposition and fraud of mercenary persons and unscrupulous officers in procuring prisoners to plead guilty through ignorance, fear or illusive promises, when a fair trial might show them to be not guilty; and t,he court whose duty it is to try persons charged with crime cannot be too vigilant in carrying out this statute according to its true spirit, in cases where such plea is interposed; and this court will not hesitate, whenever in any case any reasonable doubt exists as to a full compliance with its requirements, to set aside the sentence imposed.”

In the case before us, two witnesses testified. Both of them gave the opinion that the appellant was sane. Neither of (item gave any legal evidence of appellant’s guilt of tiie crime charged or the circumstances attending it. Deferentially and purely from hearsay, the sheriff indicated that he (the sheriff) was in possession of some whisky which had been gotten from, the appellant. The sheriff, however, expressly disclaimed having obtained it from him, and the evidence given by him is of no legal weight. Speaking of such evidence, this court, in Woodall’s Case, 58 Tex. Cr. R. 516, 126 S. W. 591, declared that the statute, which demanded that there be evidence introduced, meant that there should be legal evidence such as was authorized to go before the jury. In the instant case, there is no such evidence found in the record.

Therefore, in obedience to the statute, the judgment must be reversed, and the cause remanded.

It is so ordered. 
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