On State’s Motion for Rehearing
WOODLEY, J.The order granting appellant’s motion for rehearing and reversing the judgment appealed from is set aside and the opinions handed down in connection with said motion are withdrawn.
The contention was advanced by appellant, in his motion for rehearing, that the judgment is void and cannot be upheld as a conviction under Art. 62, P.C. or as a subsequent conviction for violation of Art. 725b, Vernon’s Ann.P.C.
The first paragraph of the indictment charged the unlawful possession of marihuana, a narcotic drug, in Bexar County, Texas, on or about January 25, 1958. A second paragraph alleged a prior conviction in the State of California for possession of a narcotic, a felony less than capital and one of like character to the offense alleged in the first paragraph.
The court’s charge authorized the jury to assess the punishment at confinement in the penitentiary for life, or for any term of not less than 10 years, upon a finding beyond a reasonable doubt that appellant unlawfully possessed marihuana on or about January 25, 1958, in Bexar County, Texas, and a further finding that he had been previously convicted in California of unlawful possession of a narcotic.
The charge also authorized the jury to assess punishment of not less than two years nor more than life if they found beyond a reasonable doubt that appellant unlawfully possessed marihuana in Bexar County, Texas, as alleged in the first paragraph of the indictment, but did not find *732that he was theretofore convicted in the California case described in the indictment.
In response to this charge, to which there were no objections, the jury returned the following verdict: “We find the defendant guilty, as charged in the first paragraph of the indictment. We further find the defendant guilty, in the second count of the indictment, and assess his punishment at confinement in the State Peniten-itary for 75 years.”
Judgment was entered upon this verdict and, motion for new trial upon other claims of error being overruled, appellant was sentenced to a term of “not less than two nor more than seventy-five years” in the penitentiary.
If the conviction cannot be upheld as a subsequent conviction for violation of the Uniform Narcotic Drug Act (Art. 725b, V.A.P.C.) and cannot be upheld as a conviction for a first violation of Art. 725b, V.A.P.C. with punishment enhanced under Art. 62, P.C., no reason appears why the judgment should not be affirmed as a first conviction for possession of marihuana without enhancement of punishment under either Article 725b or Art. 62, P.C.
The punishment assessed by the jury is one authorized by the legislature for the unlawful possession of a narcotic drug as a first or a subsequent offender. The indictment charged no other offense. The sentence pronounced is appropriate to a first conviction under Art. 725b, V.A.P.C.
Appellant is relegated to the position of complaining because the court’s charge, to which he did not object, allowed the jury to assess the punishment which they assessed and did not apply Art. 62, P.C. making a life sentence mandatory.
The error in the charge was favorable to appellant. Art. 666, V.A.C.C.P. provides that for such an error the judgment shall not be reversed. Graham v. State, 73 Tex.Cr.R. 28, 163 S.W. 726; Bragg v. State, 73 Tex.Cr.R. 340, 166 S.W. 162; Head v. State, 160 Tex.Cr.R. 42, 267 S.W.2d 419.
Other questions raised were properly disposed of in our opinion affirming the judgment.
The State’s motion for rehearing is granted and the judgment is again affirmed.