English v. State ( 1933 )

MORROW, Presiding Judge.

Unlawfully transporting intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for one year.

Appellant was charged by indictment with the unlawful transportation of intoxicating liquor and in the second count, with the unlawful possession of intoxicating liquor for the purpose of sale. The second count alone was submitted to the jury in the charge of the court. The verdict rendered and received was as follows: “We, the jury, find the defendant, Carl English, guilty as charged, and assess the punishment at one year in the penitentiary.”

The judgment reads in part as follows: “That the defendant, Carl English, is guilty of the offense of transporting liquor capable of producing intoxication, as found by the jury,” etc.

The sentence contains the same description of the offense.

There are several bills of exception but no statement of facts. In the absence of the statement of facts the bills of exception complaining of the ruling of the court touching the reception and rejection of evidence cannot be appraised; nor do we find in the record any bills of exception relating to other matter which are cognizable in the absence of the statement of facts.

It is deemed the duty of this court to construe the quoted verdict of the jury in the light of the indictment and charge of the court. So construed, it is manifest that the offense of which the appellant was convicted is that embraced in the indictment and submitted to the jury in the court’s charge, which is as follows:

“Now, therefore, if you believe from the evidence in this, case, beyond a reasonable doubt, that the defendant, Carl English, in Coleman County, Texas, on or about the 1st day of May, 1930, had in his possession whisky for the purpose of sale, you will find him guilty and assess his punishment at confinement in the penitentiary for a term of not less than one year and not more than five years. If you do not believe beyond a reasonable doubt that the defendant was in the possession and control of the liquor in question and that he had it in his possession, if at all, for the purpose of sale, you will find him not guilty and so say by your verdict.”

In the charge there is no mention made of the count in the indictment alleging that the appellant unlawfully transported intoxicating liquor. In article 847, C. C. P., it is said that the Court of Criminal Appeals may reform or correct the judgment as the law and the nature of the case may require. Reforming the judgment upon the above stated facts is understood to be in keeping with many of the decisions of this court. See Robinson v. State, 58 Texas Crim. Rep., 550; Hernandez v. State, 60 Texas Crim. Rep., 382; Gradington v. State, 69 Texas Crim. Rep., 595. In the case of Freeman v. State, 81 Texas Crim. Rep., 24, the facts, as understood, are identical in effect with those involved in the present appeal. See, also, Thompson v. State, 94 Texas Crim. Rep., 554.

The judgment and sentence are reformed so as to declare that the appellant stands convicted of the offense of possession of intoxicating liquor for the purpose of sale, and his penalty assessed by the jury at confinement in the penitentiary for one year, and that upon said verdict he is sentenced to confinement in the penitentiary of the State of Texas for one year. As so reformed, the judgment is affirmed.

Affirmed.