Smith v. State

6 S.W.2d 762, 109 Tex. Crim. 667, 1928 Tex. Crim. App. LEXIS 414

Opinion

MORROW, Presiding Judge.

The offense charged was the possession of intoxicating liquor for the purpose of sale and the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one and one-half years.

Each of the counts was submitted to the jury, and in the verdict the appellant was specifically found by the jury to be guilty of each count. The verdict reads thus:

“We, the jury, find the defendant guilty as charged in the first and second counts in the indictment, etc.”

Complaint of this verdict was made in the motion for new trial upon the ground that the conviction was for two distinct felonies. The verdict should not have been received, but having been received, the motion for new trial should have been granted. The law of this state does not tolerate the conviction of two or more felonies upon the same indictment. Such was the declaration of this court in Howard v. State, 8 Tex. Crim. App. 477; Crawford v. State, 31 Tex. Crim. Rep. 51, and numerous subsequent cases. See also Banks v. State, 93 Tex. Crim. Rep. 117; Rozier v. State, 90 Tex. Crim. Rep. 337; Smith v. State, 90 Tex. Crim. Rep. 273. This court has no power to correct the verdict and to enter the proper judgment thereon.

The judgment is reversed and the cause remanded.

Reversed and remanded.