Johnson v. State

Court of Criminal Appeals of Texas

Johnson v. State

67 S.W.2d 295, 125 Tex. Crim. 147, 1934 Tex. Crim. App. LEXIS 17

CourtCourt of Criminal Appeals of Texas

DecidedJanuary 10, 1934

DocketNo. 16383.

StatusPublished

Cited by2 cases

This text of 67 S.W.2d 295 (Johnson v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnson v. State, 67 S.W.2d 295, 125 Tex. Crim. 147, 1934 Tex. Crim. App. LEXIS 17 (Tex. 1934).

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Opinion

CHRISTIAN, Judge.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for two years.

The first count of the indictment charged appellant with selling intoxicating liquor, and in the third count it was averred that appellant possessed intoxicating liquor for the purpose of sale. Both counts were submitted in the charge of the court. The verdict of the jury was as follows: “We the jury find the defendant R. R. Johnson guilty under the first and third counts of the indictment, and assess his punishment at confinement in the state penitentiary for two years.” The judgment condemned appellant to be guilty of the two felonies charged, and adjudged that he be punished by confinement in the penitentiary for an indeterminate sentence of not less than one nor more than two years. The sentence followed the judgment.

That a conviction cannot be had for two felonies in one indictment is well settled. Wooten v. State, 15 S. W. (2d) 635, and authorities cited; Luttrell v. State, 31 S. W. (2d) 818; Comer v. State, 47 S. W. (2d) 615. In the present case the Verdict specifically found appellant guilty of two felonies; (1) Possessing intoxicating liquor for the purpose of sale; and (2) selling intoxicating liquor. If the court below had undertaken to enter a judgment condemning appellant to be guilty of only one of such felonies, it would have ignored the specific finding of the jury upon the other felony, which the trial court would have no right to do. Wooten v. State, supra. This court cannot, under the guise of reforming the judgment, ignore a part of the verdict and do that which the trial court had no authority to do.

*149 The judgment is- reversed and the. cause remanded.

Reversed cmd remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

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CHRISTIAN, Judge.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for two years.

The first count of the indictment charged appellant with selling intoxicating liquor, and in the third count it was averred that appellant possessed intoxicating liquor for the purpose of sale. Both counts were submitted in the charge of the court. The verdict of the jury was as follows: “We the jury find the defendant R. R. Johnson guilty under the first and third counts of the indictment, and assess his punishment at confinement in the state penitentiary for two years.” The judgment condemned appellant to be guilty of the two felonies charged, and adjudged that he be punished by confinement in the penitentiary for an indeterminate sentence of not less than one nor more than two years. The sentence followed the judgment.

That a conviction cannot be had for two felonies in one indictment is well settled. Wooten v. State, 15 S. W. (2d) 635, and authorities cited; Luttrell v. State, 31 S. W. (2d) 818; Comer v. State, 47 S. W. (2d) 615. In the present case the Verdict specifically found appellant guilty of two felonies; (1) Possessing intoxicating liquor for the purpose of sale; and (2) selling intoxicating liquor. If the court below had undertaken to enter a judgment condemning appellant to be guilty of only one of such felonies, it would have ignored the specific finding of the jury upon the other felony, which the trial court would have no right to do. Wooten v. State, supra. This court cannot, under the guise of reforming the judgment, ignore a part of the verdict and do that which the trial court had no authority to do.

*149 The judgment is- reversed and the. cause remanded.

Reversed cmd remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

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Bluebook (online)

67 S.W.2d 295, 125 Tex. Crim. 147, 1934 Tex. Crim. App. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-state-texcrimapp-1934.

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