
    LEE v. STATE.
    (No. 6484.)
    (Court of Criminal Appeals of Texas.
    Dec. 21, 1921.)
    1. Criminal law <@=>878(5) — Conviction under one count an acquittal of offense charged in withdrawn count.
    Where an indictment charged in two counts the unlawful sale of intoxicating liquor and the unlawful possession of such liquor, and the court limited the jury’s consideration to a finding under the count for possession and defendant was convicted, this was tantamount to an acquittal of the offense of unlawfully selling liquor.
    2. Intoxicating liquors <@=3132--Dean Law, relating to possession, held repealed.
    The offense of possessing intoxicating liquor, as defined by the Dean Law, prior to the amendment of the Eirst Called Session of the Thirty-Seventh Legislature (Acts 1921, c. 61), was so changed as to amount to a repeal of the former law.
    Appeal from District Court, Upshur County; J. R. Warren, Judge.
    C. S. Lee was convicted of possessing intoxicating liquor, and he appeals.
    Reversed, and cause ordered dismissed.
    T. H. Briggs, of Gilmer, and Simpson, Lasseter & Simpson, of Tyler, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIHORE, J.

Appellant was convicted in the district court of Upshur county of possessing intoxicating liquor, under what is known as the Dean Law (Acts 36th Leg. [2d Called Sess.] c. 78), and his punishment fixed at confinement in the penitentiary for a period of one year.

There were two counts in the indictment. One charged the unlawful sale of intoxicating liquor, and the other the unlawful possession of such liquor. By the charge of the court the jury’s consideration was limited to a finding upon the offense charged in the second count of said indictment. This was tantamount to an acquittal of the of-, fense charged in the first count. Betts v. State, 60 Tex. Cr. R. 631, 133 S. W. 251; Hewitt v. State, 74 Tex. Cr. R. 46, 167 S. W. 40.

The offense of possessing intoxicating liquor, as defined by the Dean Law prior to the amendment of the recent called session of the'Thirty-Seventh Legislature (Acts 37th Leg. [1st Called Sess.] c. 61), was so changed as to amount to a repeal of the former law. Cox v. State (No. 6423) 234 S. W. 531, and Petit v. State (No. 6510) 235 S. W. 579, decided at the present term and not yet [officially] reported. This necessitates the reversal and dismissal of this cause.

For the reasons stated, the judgment is reversed and the cause ordered dismissed. 
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