276 S.W. 236 | Tex. Crim. App. | 1925
Lead Opinion
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.. 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 charged 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.
Addendum
The indictment contained two counts, one charging the manufacture of intoxicating liquor and the other possession of equipment for the purpose of manufacturing such liquor. The charge of the court submitted only the second count and in same the learned trial judge gave the jury forms for verdicts in case of conviction, acquittal or suspended sentence. The jury's verdict was in favor of conviction and same followed the form given them by the court in such case. In spite of the fact that the court only submitted one count in the indictment and told the jury in the charge *473 that if they found the accused guilty of the offense submitted their verdict should be, "We, the jury, find the defendant guilty as charged in the indictment," etc., appellant now contends that he was found by the jury guilty under both counts and hence the verdict would not support a judgment. Mr. Branch cites many cases on p. 332 of his Annotated P. C. supporting the proposition that the charge may be looked to in aid of a verdict. The exact contention of appellant was before the court in Chappell v. State, 58 Tex.Crim. App. 401, and there decided adversely to said contention.
We are unable to agree with appellant in his proposition that we are without power to reform the judgment. Art. 938, Vernon's C. C. P., expressly confers such power, and under subdivision 9 of the notes under said article are collated many pertinent authorities.
The motion for rehearing will be overruled.
Overruled.
