Smith v. State

• Decision Date: 16 November 1921
• Docket Number: (No. 6401.)
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

234 S.W. 893

SMITH v. STATE.

(No. 6401.)

Court of Criminal Appeals of Texas.

November 16, 1921.

Appeal from District Court, Franklin County; R. T. Wilkinson, Judge.

Sherman Smith was convicted of manufacturing and possessing intoxicating liquors, and he appeals. Reversed and remanded.

Connor & Ramey, of Sulphur Springs, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Appellant was indicted in separate counts for the unlawful possession of intoxicating liquor, the unlawful manufacture of intoxicating liquor, and for the unlawful possession of equipment for making intoxicating liquor. The court instructed the jury upon each of these counts, and, upon the verdict of the jury, appellant was convicted of unlawfully possessing intoxicating liquor and of unlawfully manufacturing intoxicating liquor.

Appellant made a timely motion to require an election between the counts, and complains of the refusal of the court to grant this motion. When an indictment, in separate counts, charges several felonies and the evidence adduced develops distinct transactions, the state should, at the request of the accused, he required to elect upon which count or transaction it will seek a conviction. McKenzie v. State, 32 Tex. Cr. R. 569, 25 S. W. 426, 40 Am. St. Rep. 795. There are many apparent exceptions to this rule; for example, where the same transaction is charged in a number of different counts; where the same transaction or offense is charged in different counts, each alleging a different mode or means of doing the same act. Moore v. State, 37 Tex. Cr. R. 552, 40 S. W. 287. Other instances in which an election is not required are revealed by the authorities, but upon the present occasion we deem a discussion of them unnecessary.

The verdict ran thus:

"We, the jury, find the defendant guilty as charged and assess his punishment at confinement in the state penitentiary for a term of two (2) years."

He was charged with three separate offenses. Todd v. State, 229 S. W. 515. Upon this verdict the court entered a judgment of conviction for the offenses of manufacturing and possessing intoxicating liquors. The court is without authority to enter judgments save in accord with the verdict. Code of Crim. Proc. art. 853; Vernon's Crim. Statutes, vol. 2, p. 848. While this court, in a proper case, has power to reform the judgment to coincide with the verdict (Code of Crim. Proc. art. 938), to do so, in the instant case, would make the judgment convict the appellant of three distinct offenses and thereby do violence to his rights to an election, which was by him duly asserted and by the trial court denied. Moreover, neither the trial court nor this one could convict appellant of more than one offense under the indictment.

The unlawful possession of intoxicating liquors is a felony when possessed for sale, and the unlawful manufacture of intoxicating liquors is a felony. The two do not necessarily constitute the same act. The possession may be entirely independent of the manufacture,...