Ortez v. State , 101 Tex. Crim. 471 ( 1925 )

The indictment contained two counts, one charging the manufacture of intoxicating liquor and the other possession of equipment for the purpose of manufacturing such liquor. The charge of the court submitted only the second count and in same the learned trial judge gave the jury forms for verdicts in case of conviction, acquittal or suspended sentence. The jury's verdict was in favor of conviction and same followed the form given them by the court in such case. In spite of the fact that the court only submitted one count in the indictment and told the jury in the charge that if they found the accused guilty of the offense submitted their verdict should be, "We, the jury, find the defendant guilty as charged in the indictment," etc., appellant now contends that he was found by the jury guilty under both counts and hence the verdict would not support a judgment. Mr. Branch cites many cases on p. 332 of his Annotated P. C. supporting the proposition that the charge may be looked to in aid of a verdict. The exact contention of appellant was before the court in Chappell v. State, 58 Tex.Crim. App. 401, and there decided adversely to said contention.

We are unable to agree with appellant in his proposition that we are without power to reform the judgment. Art. 938, Vernon's C. C. P., expressly confers such power, and under subdivision 9 of the notes under said article are collated many pertinent authorities.

The motion for rehearing will be overruled.

Overruled.