Epps v. State

Appellant is condemned to confinement in the penitentiary for a period of three years of the offense of transporting intoxicating liquor.

He was indicated in separate counts for the unlawful transportation of intoxicating liquor and for the unlawful possession of intoxicating liquor. The count charging the unlawful possession is defective in that it fails to allege that the possession was for the purpose of sale. Francis v. State,90 Tex. Crim. 67; 234 S.W. Rep. 580.

No motion was made to quash the indictment, however, nor to compel an election between the counts; nor is there an exception to the charge of the court.

The verdict is a general one, finding the appellant guilty as charged in the indictment.

The point is made that because of the defective count in the indictment the judgment cannot stand. There is no statement of facts before this court, and it must indulge the presumption that the evidence which was before the trial court supports the conviction. In other words, the presumption is that the proof showed that the appellant was guilty of the offense of unlawfully transporting intoxicating liquor. We understand that when there is a conviction on an indictment containing a good and bad count, a general verdict will be referred to the good count. As applied to the facts before the court, the rule precludes a reversal. Pitner v. State, 37 Tex.Crim. Rep.; Dent v. State, 43 Texas Crim. Texas Crim. Rep. 126; Rozier v. State, 90 Tex. Crim. 337; 234 S.W. Rep. 666.

The judgment will be so reformed that the conviction will rest alone upon the count in the indictment charging the unlawful transportation of intoxicating liquor, and, so reformed, will be affirmed.

Reformed and affirmed.