Consideration of bills of exception 2, 4 and 8 was dismissed on account of what appeared to be the trial judge's qualification thereto. Our attention is called to the fact that such purported qualifications do not appear over the judge's signature, but are simply memoranda suggesting explanations over the initials "G.E.C.", which are not the initials of the learned trial judge. We conclude we were in error in disposing of the bills upon the grounds stated in our former opinion. We find, however, upon re-examination of the bills that none of them present error independent of the purported qualification. Numbers two and four complain because a witness was permitted to testify that he had seen appellant operating a still on the premises of one Henry Cook, and that appellant helped the Cook boys make whisky, and because he was permitted to identify a still then exhibited to him; number eight complains because another witness was permitted to testify that as the result of a search a still was found on Henry Cook's premises. None of the bills certify to facts which would show such testimony to have been inadmissible. The grounds stated as objections do not suffice for that purpose. (See Branch's Ann. P.C., page 134, Section 209 for collation of authorities.) Many circumstances could arise upon a prosecution for the sale of intoxicating liquor which would make pertinent and proper proof of the operation of a still by accused. Reub v. State, 93 Tex.Crim. Rep., 247 S.W. Rep., 867; Davis v. State, 93 Tex.Crim. Rep., 246 S.W. Rep., 395. It is not intended to hold or *Page 391 intimate that such proof would be receivable in every case where a sale of liquor is the offense being prosecuted.
Complaint is made because we failed to consider an alleged error for refusal of the trial court to give a special charge requested by appellant. The special charge in question appears in the transcript, but it bears no endorsement of the trial judge; it is silent as to when it was presented; it does not show whether it was given or refused; if refused it bears no notation over the judge's signature that its refusal was excepted to; neither does there appear in the record any separate bill of exception curing the defects mentioned and bringing the matter forward for review. Craven v. State, 93 Tex.Crim. Rep., 247 S.W. Rep., 515; Brooks v. State, 93 Tex.Crim. Rep., 247 S.W. Rep., 517; Hickman v. State, 93 Tex.Crim. Rep., 247 S.W. Rep., 518; Rhodes v. State, 93 Tex.Crim. Rep.; Linder v. State, 94 Tex.Crim. Rep., 250 S.W. Rep., 703.
The indictment contained four counts; the 1st charged a sale of intoxicating liquor to Paul Russell; the 2d charged a sale to Bill Bevans; the 3d charged a "furnishing" of said liquor to Russell, and the 4th a "furnishing" of the liquor to Bevans. All of the counts were submitted to the jury with directions that they should specify in the verdict under which "count or counts," if any, they convicted. The verdict found appellant guilty under the 2d and 4th counts, and fixed the punishment at only one year in the penitentiary. The judgment and sentence follows the verdict and condemns appellant to be guilty of both "selling" and "furnishing" liquor to Bevans. No complaint was made of this in the court below nor in this court on original submission, but for the first time in a supplemental motion for rehearing it is called to our attention, and insisted that it presents a fundamental error calling for a reversal. As supporting the contention we are cited to the following authorities: Banks v. State, 93 Tex.Crim. Rep., 246 S.W. Rep., 377; Knott v. State, 93 Tex.Crim. Rep., 247 S.W. Rep., 520; Zilliox v. State, 93 Tex.Crim. Rep., 247 S.W. Rep., 523; Wimberly v. State, 94 Tex.Crim. Rep., 249 S.W. Rep., 497; Huffhines v. State, 94 Tex.Crim. Rep., 251 S.W. Rep., 229; Nowells v. State, 94 Tex.Crim. Rep., 252 S.W. Rep., 550.
In the Banks case (supra), it will be seen there were three counts in the indictment charging separate and distinct felonies. Conviction was had upon all three counts. At the time, the appeal was submitted the offense charged in one count was no longer a violation of the law by reason of an amendment; another count was fatally defective, leaving only one count under which a conviction could properly have been had. The lowest penalty was assessed in that case but the judgment was reversed because it was impossible for this court to know under the state of the record there presented whether *Page 392 the conviction was had upon the good count or upon the bad counts. In Knott's case (supra), he was convicted of two distinct felonies and more than the minimum penalty was assessed; this is likewise true in the Zilliox, Wimberly, Huffhines and Nowells cases (supra), and in Modica v. State (infra). In our opinion in the Huffhines case will be found this language:
"It is not one of those instances where this court can correct the judgment. If the lowest penalty had been inflicted, perhaps a different rule might apply."
All of the foregoing cases are clearly distinguishable from the one now being considered. The evidence in this case shows only one transaction. It is true appellant might have furnished liquor to Bevans without having sold it, but on the contrary he could not have sold it without having furnished it. The facts show the act of sale and delivery were identical, and two convictions could not be predicated upon the facts as presented under the record before us. The minimum punishment having been assessed we have therefore reached the conclusion that the instance presented is one in which this court under Article 938 C.C.P. has the right to reform the judgment and apply the verdict to the second count in the indictment, adjudging appellant to be guilty of the sale of the liquor in question to Bevans and this will accordingly be done. A somewhat similar state of affairs is found reflected in Guse v. State, (No. 7075, opinion delivered October 17, 1923, not yet officially reported) where Guse was charged in one count with selling liquor capable of producing intoxication and in another count with selling liquor containing more than one per cent of alcohol by volume, but in that case as in this only one transaction was involved and only one offense committed. On motion for rehearing in Modica v. State, 251 S.W. Rep., 1049, we were dealing with a similar question but where the punishment assessed was more than the minimum. We quote from the opinion as follows:
"It is the duty of the courts to indulge every reasonable intendment in upholding the verdicts of juries. In doing this we have applied in some cases general verdicts to some one count submitted, where more than one appear, provided the punishment fixed be such as that it can be concluded that the jury intended to punish in but one case. General verdicts with minimum punishments have also been applied to good counts in cases where others were defective, but we know of no case in this state which upholds the doctrine that a verdict specifically finding the accused guilty under more than one count in a felony case, which affixed a punishment greater than the minimum, could be upheld."
The evidence in the instant case shows only one transaction and the minimum penalty having been assessed it is clear to our minds that it was not the purpose of the jury to convict of two felonies, *Page 393 but only upon the one transaction alleged with Bevans. We therefore conclude that no injury can result to appellant from reforming the judgment as heretofore indicated.
The motion for rehearing will be overruled.
Overruled.