Johnson v. State | Cases | Westlaw

This case was tried in the county court. Various objections are urged to the indictment, principally that it charges a misdemeanor and a felony in the same count, which makes it duplicitous. If it only intended to charge appellant with knowingly becoming the agent of Pointer to obtain a poll tax receipt or certificate of exemption, or if it charged that he gave money to Pointer to induce him to pay his poll tax, it might be brought under article 229 of the Penal Code of 1911, but it does not undertake to charge that he gave money to Pointer, but it charges that appellant paid the tax collector of Palo Pinto county the poll tax due by Pointer, which would come within the provisions and denunciation of article 233. That article provides that any candidate for office or other person who pays or procures another to pay the poll tax of a citizen, except as permitted by law, is guilty of a felony *26 and shall be punished, etc. The indictment is rather an admixture of articles 229 and 233 of the Penal Code. If the indictment is duplicitous, one charging a misdemeanor and the other a felony, of course the indictment would be quashed. A misdemeanor and a felony cannot be so charged in this state. One would be a misdemeanor, with jurisdiction in the county court, while the other would be a felony, with jurisdiction in the district court. This would render it duplicitous. The writer is inclined to the opinion that the indictment is duplicitous, but, in any event, it does charge appellant, or seeks to charge him, with a felony under article 233, wherefore the county court did not have jurisdiction. The writer's suggestion is that the pleadings should be confined to one of the statutes. The allegations in the indictment should comply with the definition of one of the articles. If appellant paid the money for Pointer and obtained a poll tax receipt, not being authorized by law to do so, the indictment should be framed under article 233, which would be returnable to the district court. The writer would suggest that a new indictment be obtained framing the allegations to one article or the other of the Code cited.