
    HOOPER v. STATE.
    (No. 7098.)
    (Court of Criminal Appeals of Texas.
    April 25, 1923.)
    1. Criminal law <§=>678(1) — State need not elect between counts charging possession for sale and possession of liquors containing prohibited percentage.
    Where the indictment contained two counts, oné charging the unlawful possession for the purpose of sale of spirituous, vinous, and intoxicating liquors, and the other charging the possession of spirituous, vinous,, and. intoxicating liquors, containing in excess of 1 per cent, of alcohol by volume, both of which were proved- by the same evidence, it was not error to refuse to require the state to elect as between the counts.
    2. Criminal law <8=5878(2) — Conviction by general verdict on separate counts charging different felonies is erroneous.
    The offense of possessing intoxicating liquor for the purpose of sale, contrary to Dean Law, § 1 (Vernon’s Ann. Pen. Code Supp. 19-22, art. 588⅛), and that of possessing any spirituous, vinous, or malt liquor containing an excess of 1 per cent, of alcohol, for the purpose of sale, contrary to section 2, are separate of-fensés each of which is a felony; and, where an indictment in two counts charged each offense and the same evidence was relied on under both counts, a general verdict of guilty without designating the offense 'for which conviction was had was erroneous; the jury should have been required to designate the count upon which the conviction was based.
    3. Criminal law <§=»! 175 — Conviction, of two felonies held prejudicial in view of penalty.
    A conviction by general verdict of two felonies charged in different counts but based on the same evidence is not harmless, where the penalty imposed was more than the combined minimum penalty for the two offenses, though' it might have been harmless if only the minimum penalty for one offense had been imposed.
    4. Intoxicating liquors <§=>132 — Statute making possession for sale an offense was not repealed.
    The amendment of Acts 36th Leg. (1919) 2d Called Sess. c. 78, by Acts 37th Leg. (1921) 1st Called Sess. c. 61 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼ et seq.), did not repeal section 1 of the former act relating to the unlawful possession of intoxicating liquor, and, both before and since the enactment of the amendment, the possession of intoxicating liquors for the purpose of sale is an offense.
    5. Criminal law <§=>978 — Statute denying benefits of suspended sentence law to certain offenders is valid.
    . The provision of Acts 37th Leg. (1921) 1st Called Sess. c. 61, denying the benefits of the Suspended Sentence Law (Vernon’s Ann. Code Cr. Proe. 1916, art. 865b), to persons, over 25 years of age who violated the provisions of Acts 36th Leg. (1919) 2d Called Sess. e. 78, or Acts 37th Leg. (1921) 1st Called Sess. e. 61, amendatory thereof (Vernon’s, Ann. Pen. Code Supp. 1922, art. 588¼ et seq.), is valid.
    6. Intoxicating liquors <§=>222 — Indictment for possession need not allege it was for excepted purposes. -
    Since the enactment of Acts 37th Leg. (1921) 1st Called Sess. c. 61 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588⅞ et seq.), the Dean Law does not require that an indictment charging the violation of the law must contain an averment that the possession of the liquor was not for medicinal, mechanical, scientific, or sacramental purposes.
    Appeal from District Court, Bastrop County; R. J. Alexander, Judge.
    Opie Hooper was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Reversed and remanded.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for the unlawful possession of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

There were two counts in the indictment: One charging the unlawful possession, for the purpose of sale, of spirituous, vinous, and intoxicating liquors; the other charging the possession of spirituous, vinous, and intoxicating liquors, containing in excess of 1 per cent, of alcohol by volume. These were proved by the same evidence, and we think there was no error in the court’s refusal to require the state to elect as between the counts. See Banks v. State (Tex. Cr. App.) 246 S. W. 377; Smith v. State, 90 Tex. Cr. R. 273, 234 S. W. 893; Vernon’s Tex. Crim. Stat. vol. 2, p. 245, note 33; Bishop’s New Crim. Proc. vol. 1, § 457, p. 376.

In the court’s instruction to the .jury, they were authorized to find appellant guilty on each of the counts in the indictment, and the jury found a general verdict of guilty assessing the punishment at confinement in the penitentiary for a period of two years.

Section 1 of the so-called Dean Law (article 588⅛, Vernon’s Ann. P. C. Supp. 1922) permits the possession of liquor capable of producing intoxication except for the purpose of sale. Section 2 forbids the possession of any spirituous, vinous, or malt liquor which contains an excess of 1 per cent, of alcohol by volume for the purpose of sále. These sections denounce separate offenses. i In a prosecution under section l', it is essen-I tial that the liquor possessed be intoxicating, I but in a prosecution under section 2 it is net necessary that the liquor be intoxicating. It is sufficient if it is shown to contain an excess of 1 per cent, of alcohol. The distinction between the two offenses was pointed out by this court in the case of Estell v. State, 91 Tex. Cr. R. 481, 240 S. W. 918. Therefore the appellant in the instant case stands convicted upon the same indictment and on the same trial with two offenses, both of which are felonies. As above stated, it was permissible for the court to refuse to require the state to elect between the courts, but he should have told the jury to designate in their verdict the count upon which! the conviction was founded, and should have conveyed to them the information that they were not to convict the appellant upon both counts. As the matter stands, if appellant had been given the minimum punishment, the error might not be important; but he has received, double the minimum punishment, and there is no method by which this court can determine whether the punishment would have been the same had the jury known that they could convict upon but one count. The same question was before this court in the case of Smith v. State, 90 Tex. Cr. E. 273, 234 S. W. 893, also in Banks v. State, 246 S. W. 377, and Rozier v. State, 90 Tex. Cr. E. 337, 234 S. W. 666; and because of the error pointed out, this cause, like those, must be reversed.

The amendment of chapter 78, Acts of the 36th Leg., 2d Called Session, by the enactment of chapter 61, Acts of the 37th Leg., 1st Called Sess.,~ did not have the effect of repealing section 1 of chapter 78 relating to the unlawful possession of intoxicating liquor, but both before and since the enactment'of said amendment, the possession of intoxicating liquor for the purpose of sale is an offense. See Ex parte Mitchum, 91 Tex. Cr. R. 65, 237 S. W. 935. Nor were the provisions of chapter 61, supra, denying the benefits of the Suspended Sentence Law (article 865b, C. C. P.) to persons over 25 years of age who violated the- provisions of chapters 78 and 61, supra, void. Davis v. State (Tex. Cr. App.) 246 S. W. 395. Since the enactment of chapter 61, supra, the law does not require that where the manufacture, sale, or possession of intoxicating liquor is permitted, the indictment charging the violation of the so-called Dean Law must contain an averment that the act was not for medicinal, mechanical, scientific, or sacramental purposes. Crowley v. State (Tex. Cr. App.) 242 S. W. 472; Trevinio v. State (Tex. Cr. App.) 242 S. W. 242.

In the other questions presented we have found no merit.

Because of the reason pointed out, the judgment is reversed, and the cause remanded. 
      ®=>For other cases see same topic and- KEY-NUMBER in all Key-Numbered Digests and Indexes
     