We decline to again be drawn into a discussion of the right of an officer to search an automobile, having probable cause for such search, but in the absence of a search warrant. That question has been settled. See Carroll v. U.S., 267 U.S. 132, 69 L. Ed. 543; 39 A. L. R. 790; Battle v. State, 105 Tex. Crim. 568,290 S.W. 762. See also Hardiway v. State, 108 Tex. Crim. 659,2 S.W.2d 455, in which many of our own state authorities are collated. *Page 391
The indictment contained two counts, one charging transportation of intoxicating liquor, the other possession thereof for the purpose of sale. Only one transaction was under investigation. The evidence would have supported a verdict under either count. The court realized this and properly told the jury if they found appellant guilty to state under which count they convicted and instructed them positively that they could assess only one punishment. The jury responded by a specific finding of guilt under the count charging transportation. Appellant is not entitled to force the state to an election as between counts where the purpose was to cover different phases of one transaction only. Appellant cites Stringer v. State, 10 S.W.2d 721, as supporting his proposition that appellant was entitled to an election. He has misconceived the holding in that case. An examination of it will reveal that the state had proven three transactions, one occurring in September, another in July, and still another in January, upon either of which the state might have relied for a conviction. It was held that appellant's request for an election as between the transactions was improperly denied.
Other matters are urged in the motion for rehearing but we think they were correctly decided in the original opinion and require no further notice.
The motion for rehearing is overruled.
Overruled.