The indictment charged the sale of intoxicating liquor to William Henderson, and also charged the possession of intoxicating liquor for the purpose of sale. There was evidence supporting both averments. It is the appellant's contention that there being but one transaction, the court should have submitted but one of the counts. We understand the rule to be as stated by Mr. Branch in his Ann. Tex. P. C., Sec. 444 as follows:
"If different counts charging the same character of offense are inserted in the indictment to prevent a variance and there is evidence *Page 339 supporting each, the State is not required to elect between such counts."
"If only one transaction or act is charged and different counts are contained in the indictment to meet the possible phases that the testimony may assume, the State will not be required to elect between such counts."
These propositions are supported by numerous authorities collated by Mr. Branch. This principle was announced in the early case of Gonzales v. State, 12 Texas Crim. App. 663, and has since been followed without departure. See Hooper v. State, 94 Tex.Crim. Rep.. It would have been appropriate for the court to tell the jury that in the event of a conviction they should designate the count upon which they found against the accused. There being evidence, however, in support of both counts, and the penalty assessed being the lowest, the failure to give such an instruction would not be reversible error. Hooper v. State, supra. The position taken by the appellant that there was not evidence supporting the second count is not tenable. It is conceived that the appellant's action in selling and delivering the whiskey to Henderson was a transaction upon which he might have been convicted for the possession of whisky for the purpose of sale. See Smith v. State, 90 Tex. Crim. 274. If there was but one transaction, it is possible that there might have been but one conviction, but the fact that he sold the whisky which he possessed for sale did not render him less guilty of the possession for the purpose of sale. Coulter v. State, 94 Tex.Crim. Rep..
The motion is overruled.
Overruled.