While testifying in his own behalf, appellant, on cross-examination by the State, was caused to admit *Page 143 that there was pending against him in the District Court of Van Zandt County, five cases in which he was charged with violating the liquor laws, one of which was for the sale of intoxicating liquor, another (No. 7911) charged him with the unlawful possession of intoxicating liquor, and two other cases: one for selling and the other for having in his possession intoxicating liquor.
It is charged in the bill that all of these indictments were returned at the same term of court, and the objection is made that they grew out of the same transaction as the case for which he was on trial. The court, in approving the bill, declined to assent to that part of the bill to the effect that they grew out of the same transaction.
In argument, attention was drawn to the fact that on one of the indctments mentioned, there had been a conviction, which on appeal, to this court, was reversed. Plunk v. State, 256 S.W. Rep., 922. From an examination of that case, it seems clear that it is a conviction for possessing, for the purpose of sale, two pints of whisky which he sold to James B. Rogers; that the facts are identical with those in the present case. In other words, it appears that in this case he was convicted of selling two pints of whisky to Rogers on a certain day at a certain place; and that on the same transaction, he was, in another case, convicted of possessing two pints of liquor for the purpose of sale. If it be true that this is the identical transaction, both of the charges might have been embraced in one indictment under separate counts and ought to result in but one conviction. See Coulter v. State, 252 S.W. Rep., 168.
The State having elected to file two cases against the appellant upon a single criminal act, proof that the indictment for making the sale was pending against him should not be used against him upon his trial for the unlawful possession of intoxicating liquor for the purpose of sale. These remarks are confined to the facts of the present case. They are not intended to convey the idea that in a proper case several indictments for violating the law prohibiting the possession, sale, transportation, etc., of intoxicating liquor returned upon the testimony of the same witness, may not be used for impeachment purposes against the accused on trial, but where the State, having but one case, wrongfully presents two indictments, one of them should not be used against the accused upon the trial of the other. The evidence is conflicting and the punishment is much above the minimum. We are not prepared to say that appellant suffered no injury. For the reasons stated, the motion for rehearing is granted, the affirmance heretofore entered is set aside, and the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded. *Page 144