We have concluded that the original opinion in this case should be and same is, here withdrawn, and in lieu thereof the following opinion be substituted therefor:
The indictment herein having charged the appellant in the first count with driving an automobile upon a public road while intoxicated, and in the second count with driving an automobile upon a *Page 72 public road while in a degree under the influence of intoxicating liquors, and the court having substitued both of said counts to the jury, and the jury returned a verdict of guilty on each count and assessed the punishment at sixty days in the county jail, being more than the minimum penalty, and the judgment entered in keeping with said verdict, we are of the opinion that the verdict is so uncertain and indefinite that same requires a reversal of this case. The appellant being convicted of a felony, and the verdict of guilty being on two separate counts, assessing more than double the minimum penalty, renders same uncertain as to whether the jury intended to punish appellant upon each count in the indictment at sixty days in jail on each count or for sixty days only for both counts. If it was intended for the former the penalty would aggregate one hundred twenty days, and if the latter sixty days.
This uncertainty we think requires a reversal of this case. Williams v. State, delivered May 14th, 1925, unreported. Venturi v. State, delivered May 14th, 1925, unreported. Nelson v. State, 261 S.W. 1046; Modica v. State, 251 S.W. 1049; Banks v. State, 257 S.W. 283; Rambo v. State, 258 S.W. 827. While we believe the statute in question embraces only one felony, describing two means of its violation yet we believe the authorities supra cover the questions herein discussed, and covers the principles herein announced. The court should not have instructed the jury to find a verdict in both counts nor have received such a verdict.
For the reasons above stated, the judgment of the trial court is reversed and the cause remanded.
Reversed and 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.