Appellant was charged in the first count of the indictment with transportation and in the second count with possession of intoxicating liquor for the purpose of sale. Both counts were submitted, the court omitting to instruct the jury that they could convict on one count only, but on the contrary authorized a verdict of guilty on both counts. The verdict found appellant guilty "under the first and second counts" and assessed the punishment at confinement in the penitentiary for three years. The minimum punishment for either offense is one year. (Art. 689 P. C.) The verdict was received and the judgment condemned appellant to be guilty of the two felonies charged and adjudged that he be punished by confinement in the state penitentiary for an indeterminate term of not less than one year (the minimum prescribed by law) and for not more than three years, the term fixed by the jury. The sentence follows the judgment.
The foregoing state of the record is now on motion for rehearing for the first time called to our attention. By no suggestion was it presented upon original submission. *Page 282
The judgment should have followed the verdict as to the penalty. (Art. 766 Cow. C. P.) The indeterminate feature of the punishment is authorized in passing sentence. (See Art. 775 Cow. C. P.)
The exact point made by appellant in his motion for rehearing is that from the record it appears that upon one trial, under one indictment, he was convicted of two felonies, which is not permissible. The contention must be sustained. We have had occasion to write much on the point recently and find it unnecessary to elaborate further. The reasons for our holding will be found in the early cases of Miller v. State, 16 Tex. App. 417[16 Tex. Crim. 417]; Crawford v. State, 31 Tex.Crim. R.,19 S.W. 766 and in the more recent cases of Knott v. State, 93 Tex.Crim. R., 247 S.W. 520; Banks v. State, 93 Tex.Crim. R.,246 S.W. 377; Wimberly v. State, 94 Tex.Crim. R., 249 S.W. 497; Hooper v. State, 94 Tex.Crim. R., 250 S.W. 694; Huffhines v. State,94 Tex. Crim. 292, 251 S.W. 229; Reyna v. State, 96 Tex. Crim. 320,257 S.W. 883; Goldstone v. State, 25 S.W.2d 852.
The punishment assessed in view of the verdict can only be construed as a joint punishment on conviction for two felonies. We think neither the trial court nor this court could enter or amend a judgment which would not be in conflict with the holding in the authorities cited without ignoring part of a specific verdict which cannot be done. See Hill v. State,6 S.W.2d 763; Wooten v. State, 111 Tex.Crim. R., 15 S.W.2d 635; Venturi v. State, 100 Tex.Crim. R., 272 S.W. 211, and authorities cited therein.
Because of the error now apparent from the record the motion for rehearing must be granted, the opinion of affirmance set aside and the judgment of the trial court be reversed and the cause remanded for a new trial.
Granted.