
    BANKS v. STATE.
    (No. 6883.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1922.)
    1. Criminal law <⅜=5678(2) — On motion after argument was begun state should be required to elect ground of prosecution or jury directed to specify offense committed.
    In a prosecution under an -indictment in three counts, for unlawful possession of intoxicating liquor, for unlawful manufacture of liquor, and for unlawful possession of equipment for its manufacture, all of which offenses were felonies, 'on motion by the accused for the state to elect the ground of prosecution, made after the charge was read to the jury and argument was begun, the state should have been required to elect, or the jury should have been directed to specify in their verdict, the ground of the conviction, if any.
    2. Criminal law <§=678(2) — Motion for state to elect ground of prosecution should be made before defense enters on evidence.
    Although there is no ■ inflexible rule as to when the right of the accused to demand an election of grounds of prosecution by the state ceases, the motion for the state to elect should be made before the accused enters on his evidence.
    3. Criminal law <⅞==878(1) — Accused may not be convicted of two felonies under one indictment.
    In a criminal prosecution under an indictment, alleging two or more 'felonies, in different counts, accused may not be convicted of two or more felonies upon one trial under one indictment.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    Charley Banks was convicted of the unlawful possession, and unlawful manufacture of intoxicating liquor, and unlawful possession of equipment for such manufacture, and he appeals.
    Reversed and remanded.
    
      Jesse M. Brown, Cr. Dist. Atty., of Port Worth, and R. G. Storey, Asst, Atty. Gen., for the State.
   HAWKINS, J.

A penalty of one year in the penitentiary was assessed against appellant.

The indictment contained three counts: The first charged the unlawful possession of intoxicating liquor; the second charged the unlawful manufacture of such liquor; the third, unlawful possession of equipment for such manufacture. The prosecution was instituted and the trial had when the acts alleged were all felonies, before the amendment to what is known as the Dean Liquor Law, passed by the Thirty-Seventh Legislature (Vernon’s Ann. Pen. Code 1922, art. 588¼ et seq.), became effective. The court submitted all three counts to the jury, not requiring them, in the event they convicted, to specify of which offense they found appellant guilty. After the charge vjas read to the jury and argument begun, counsel for appellant made a verbal motion requiring the state to elect for which alleged offense it would seek a conviction. The motion was overruled because, in the opinion of the trial judge, it came too late. A general verdict of guilty was returned, and thereupon judgment was rendered adjudging appellant guilty of all three offenses.

The state contends that the motion to elect came too late, and, notwithstanding the act charged in the third count is no longer an offense, and the first count is defective in not alleging the possession was for the purpose of sale, that the judgment should be reformed by this court to apply to the second count for manufacture only. In support of this proposition we are referred to Rozier v. State, 90 Tex. Cr. R. 337, 234 S. W. 666. The record in that case failed to show any request for an election made at any time in the lower court, the question being raised for the first time in this court. Unless the request for election in the present cáse came at such a time that we are authorized to disregard it entirely, Smith v. State, 90 Tex. Cr. R. 273, 234 S. W. 893, is directly in point and calls for a reversal.

No inflexible rule as to when the right to demand an election first arises.or when it ceases can be laid down for the very good reason stated by Mr. Bishop in his Criminal Procedure, vol. 1, § 462, that it is largely a matter of judicial discretion and “because it is difficult to reduce discretion to rule, and partly because judicial opinions on such a subject cannot in the nature of things be in complete harmony.” The general rule is that the motion should be made before the defendant enters upon his evidence. Blackwell v. State, 51 Tex. Cr. R. 24, 100 S. W. 774; Bishop’s Crim. Proc. vol. 1, § 461; Wharton’s Crim. Proc. vol. 1, § 346. The trial court was evidently ■ controlled by this rule in denying the election because the request came after argument had begun. Appellant certainly could not be convicted of the three distinct felonies charged against ⅛⅛. The motion to elect after the charge was read to the jury was a delayed exercise of his right, but it directed the court’s attention to the matter complained of by appellant, and we are not inclined to hold that he should be denied this right because of his failure to present his motion when the prosecution closed its evidence. We have a judgment before us in which appellant has been convicted of three separate and distinct felonies which were offenses at the time of the trial. When the motion to elect was made, we believe the trial court should have withdrawn his charge from the jury and either required the state to elect for which offense they would seek a conviction, or, if under the facts an election was not required, he should have amended his charge so as to direct the jury to specify in their verdict of which offense they convicted, if any. We think the Smith Case, supra, controls, rather than the Rozier Case, supra.

Many cases are reaching this court under prosecutions for violation of the present liquor laws, where the right of election as between independent felonies charged in separate counts is ignored, and some, as in the instant case, where convictions are for more than one distinct felony. It has been so short a time since violations of liquor laws in our state were misdemeanors (in which a different rule obtains with reference to elections, see Branch’s Ann. P. C., p. 233) it appears to be difficult to realize in dealing with charges for such violations under our present statute that they are felonies, and must be treated and tried accordingly. This is our excuse for adverting to the matters hereafter mentioned. It is not thought necessary to review the general question of election. The rules are well stated and distinctions clearly drawn by Mr. Branch in his Annotated Penal Code, § 444, pp. 232, 233, 234. In Keeler v. State, 15 Tex. App. Ill, Judge Hurt was discussing a case where no election could properly have been required, but, with reference to conviction of more than one offense, he says:

“Now, upon the trial under such an indictment, the state will not be required to elect upon which count the defendant shall be tried. Upon such an indictment the' defendant is tried upon all the counts, and the jury should be instructed by the court that, if not guilty of the theft, they should then consider the ease as made by the count for embezzlement and the evidence relating thereto, and determine his guilt .of 'that offense; and so on through all of the counts, supported by ■ evidence, or which the evidence tends 'to support, instructing the jury so that they should find the defendant guilty of but one offense.”

See, also, Baker v. State, 25 Tex. App. 1, 8 S. W. 23, 8 Am. St. Rep. 427; Dalton v. State, 4 Tex. App. 334; Masterson v. State, 20 Tex. App. 574; Parks v. State, 29 Tex. App. 597, 16 S. W. 532; McKenzie v. State, 32 Tex. Cr. R. 568, 25 S. W. 426, 40 Am. St. Rep. 795; Collins v. State. 178 S. W. 345.

In Crawford v. State, 31 Tex. Cr. R. 51, 19 S. W. 766, the court was considering the very question of conviction for more than one felony under one indictment containing several counts. We copy as follows from that opinion:

“Can defendant he convicted of two felonies under the same indictment, and be punished for each? The learned trial judge admits in his argument that there is no precedent for such a proceeding as the one at bar to be found in the Texas) decisions, nor, indeed, can any well-considered case be found in any state,, except in those courts in which the judge assesses the punishment, and where he is limited in the aggregate to the highest punishment that can. be given upon any one count. We have no such law in Texas. * * * Where two or more felonies are charged in the same indictment, the presumption is, they are parts of the same transaction, and are to be sustained by the same evidence; and while they all may be submitted to a jury, there can be but one conviction, which, as it were, appropriates the guilty intent which runs through and connects these several acts or offenses and makes them one. * * * ”

The opinion quotes with approval from the well-considered case of State v. Lincoln, 49 N. H. 471, as follows:

“Where different offenses are joined in one indictment, the prosecutor will not be compelled to elect at the outset, for that would take away all the advantage of adapting the indictment to the contingencies of the evidence; but the .court will always take care that the defendant is not convicted of two offenses under the same indictment.”

Further quoting:

“In the Miller Case, 16 Texas Court of Appeals, 417, Judge Willson, in responding to the question, ‘In an indictment 'charging both burglary and theft, can a conviction and punishment be sustained for each offense?’ replies, ‘No,’ because the burglary would include the theft, and he reversed the ease. He held it was no objection to the indictment that it charges both burglary and theft, but when so charged, a conviction cannot be had for both offenses, and a separate punishment assessed for each, or a joint punishment for both.”

In Carr v. State, 36 Tex. Cr. R. 3, 34 S. W. 949, we find this language:

“In this case the court submitted both counts to the jury, and the evidence fully supports both; and, the verdict being general, the court could enter judgment upon either. But for the inhibition in felony cases, a judgment could have been entered upon both counts.”

Whatever the purpose of the pleader in inserting various counts in an indictment charging a felony (and the practice is a good one and to he commended), the authorities make it plain that where a defendant is protesting, he cannot be convicted of more than one felony under such an indictment. Sometimes it may occur, as. in Blackwell v. State, 51 Tex. Cr. R. 24, 100 S. W. 774, that accused demands no election and makes no protest at conviction for various felonies charged in the indictment, on the theory, perhaps, that a plea of former conviction or acquittal would avail him in bar of further action on any act or offense included in the indictment; but when the trial court’s attention is called to the matter by motion to elect, requested charges, or in any other proper way, accused may not be convicted of two or more felonies upon one trial, under one indictment. , This is the principle we are stressing in order to correct what appears to be a somewhat prevalent and erroneous practice.

For the reasons heretofore given, the judgment must be reversed and the cause remanded. 
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