
    SMITH v. STATE.
    (No. 11795.)
    Court of Criminal Appeals of Texas.
    May 23, 1928.
    1. Criminal law <&wkey;933 — New trial should have been granted where verdict showed conviction of two distinct felonies under different counts.
    A new trial should have been granted, where verdict in liquor prosecution read so as to show conviction of defendant of two distinct felonies under different counts on the same indictment.
    2. Criminal law <&wkey;l 184 — Court of Criminal Appeals could not correct verdict, which was improper because finding defendant guilty of two felonies, and enter proper judgment.
    The Court of Criminal Appeals could .not, where verdict improperly read so as to find defendant guilty of two distinct felonies of liquor law violation, correct such verdict and enter proper judgment thereon.
    Appeal from District Court, Smith County; J. R. Warren, Judge.
    Andrew Smith 'was convicted of the possession of intoxicating liquor for the purpose of sale and the unlawful transportation of intoxicating liquor, and he appeals.
    Reversed and remanded.
    Gentry & Gray, of Tyler, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense charged was the possession of intoxicating liquor for the purpose of sale and the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of 1% years.

Each of the counts was submitted to the jury, and in the verdict the appellant was specifically found by the jury to be guilty of each count. The verdict reads thus:

“We, the jury, find the defendant guilty as charged in the first and second counts in the indictment, etc.”

Complaint of this verdict was made in the motion for new trial upon the ground that the conviction was for two distinct felonies. The verdict should not have been received; but, having been received, the motion for new trial should have been granted. The law of this state does not tolerate the conviction of two or more felonies upon the same indictment. Such was the declaration of this court in Howard v. State, 8 Tex. App. 447; Crawford v. State, 31 Tex. Cr. R. 51, 19 S. W. 766; and numerous subsequent cases. See, also, Banks v. State, 93 Tex. Cr. R. 117, 246 S. W. 377; Rozier v. State, 90 Tex. Cr. R. 337, 234 S. W. 666; Smith v. State, 90 Tex. Cr. R. 273, 234 S. W. 893.

This court has no power to correct the verdict and to enter the proper judgment thereon.

The judgment is reversed and the cause remanded. 
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