Coursey v. State , 97 Tex. Crim. 47 ( 1924 )

Appellant insists that because the indictment contained two counts and the verdict was general and did not assess the lowest penalty, we erred in affirming his case. He cites 246 S.W. Rep., 377; 247 S.W., Rep., 520; 249 S.W. Rep., 497; 251 S.W. Rep., 229; 252 S.W. Rep., 550, and 256 S.W. Rep., 273. The styles of these causes are not given, and we regret that we could not find the last citations.

Appellant was charged in one count in the indictment with the sale of liquor and in the other count with the delivery of same. The evidence showed only one transaction, and there was therefore neither need nor request for an election, and the learned trial judge charged the jury applicable to the facts, as follows:

"Therefore, gentlemen of the jury, if you find from the evidence in this case, beyond a reasonable doubt, that the defendant, F.C. Coursey, did, on or about October 20, 1922, in Mitchell County, Texas, sell or deliver whisky to B.E. Dale, then you will find the defendant guilty as charged in the indictment, and assess his punishment at confinement in the State penitentiary of Texas for a period of years not less than one nor more than five."

The verdict found appellant guilty as charged and assessed his punishment at two years. The court applied same to the count charging a sale and the judgment and sentence were for that offense. No complaint of the verdict, judgment or sentence was made in the court below. The course pursued by the learned trial judge has met with the approval of this court in many cases, a few of which are cited: Alexander v. State, 31 Tex. Crim. 359; Shuman v. State, 34 Tex.Crim. Rep.; Southern v. State, 34 Tex.Crim. Rep.; Rossen v. State, 37 Tex. Crim. 87.

Appellant misinterprets the effect of our holdings in the cases cited by him. An inspection of those decisions reveals that either the judgment or sentence in the given case fixed the guilt of two offenses, or the court below failed to apply a general verdict to an applicable count under the facts, or the record showed a general verdict and judgment following the submission of a count so defective as to not support any judgment. We know of no case where the record shows but one transaction wherein the verdict has been applied to a count supported by the proof, which was reversed by this court because the minimum penalty was not given to the accused.

Believing the former opinion to correctly announce the law, the motion for rehearing will be overruled.

Overruled.