
    JACOBS v. STATE.
    (No. 9135.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1925.)
    1. Criminal law <@=>l 167(2)— Objections to refusal, to compel election between counts and give charge on one held eliminated by withdrawal of latter, and Instruction on remaining count only.
    Refusal to compel state to elect between counts charging sale and transportation of intoxicating liquor, and refusal of charge to acquit if defendant was acting purely to accom-' modate purchaser and had no interest in liquor, held not available error, where court withdrew count charging sale from jury, and instructed it solely on count charging transportation.
    2. Criminal law <@==>>1169(5) — Admission of defendant’s testimony that he was not acting for any one in transaction held harmless.
    Admission Of defendant’s testimony on cross-examination that he was not acting for any one in alleged sale of liquor held harmless, in view of court’s withdrawal of count charging sale from jury’s consideration, and instruction on transportation only, defendant’s detailed testimony as to transaction, contention of state’s witnesses that defendant himself delivered whisky to purchaser, and instruction to acquit in case of reasonable doubt as to whether another transported or delivered liquor.
    3. Criminal law'<@=ll84 — Judgment and sen-’ fence for possessing liquor corrected and reformed to conform to verdict.
    Judgment of guilty of possessing intoxicating liquor and sentence accordingly, in case wherein court submitted, and jury returned, verdict of guilty on count charging transportation only, being error patent on face of record, will be corrected and reformed, under Code Cr. Proc. 1926, art. 847 (Vernon’s Ann. Code Or. Proc. 1916, art. 938), to conform to verdict.
    Commissioners’ Decision.
    Appeal from District Court, Howard County ; W. P. Leslie, Judge.
    Nathan Jacobs w’as convicted of transporting intoxicating liquor, and he appeals.
    Af= firmed as reformed.
    John B. Littler, of Eastland, and J. B. Howard, of El Paso, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was tried and convicted in the district court of Upward county for the offense of transporting intoxicating liquor and his punishment assessed at three years in the penitentiary.

There is no brief on file in behalf of the appellant in this case, but we find four bills of exception. The first bill of exception complains of the court refusing to compel the state to elect upon which count in the indictment it sought to prosecute the defendant. The indictment contains two. counts, the first count charging a sale and the second count charging transportation. The second bill is in the nature of objections and exceptions to the court’s charge, and the third bill complains of the court refusing to give a special charge to the effect that if the defendant^was acting purely for the accommodation to the purchaser of the alleged liquor in question and had no interest in same, to acquit him; and the fourth bill, complains of the court’s action in permitting the state to ask the appellant, while a witness on the stand, “For whom were you acting in this transaction?” and having him to answer thereto, “I was not acting for any one I guess.” The court withdrew the first count in the indictment from the consideration of the jury, and instructed the jury solely on the second count, which eliminated the objection raised to the refusal of the court to force the state to elect.

The third bill pertains to the sale and to the first count in the indictment which, when withdrawn from the consideration of the jury, eliminated any objection thereto. The fourth bill, complaining of’ the action of the court in having the appellant to testify for whom he was acting, we think would apply to the count in the indictment relative to the sale, and would have no bearing on the transportation charge in the indictment. At any rate, the appellant on the stand went into detail as to this entire transaction, and stated that one Andrews had approached him while he was porter on a Pullman car at Big Springs, to know if he could get him some whisky; that he told him he did not have any, but would see, and he turned over to him sthe money with which to get it, and he went back and saw another porter, on another Pullman in said train, named “Cowboy,” and told him what Andrews wanted, and. he said that he could supply him; and that he supposed that “Cowboy” did deliver the whisky to said Andrews, but that he (appellant) did not. It was the contention of the state’s witnesses that it was the appellant who delivered the whisky in a sack to said Andrews as said train was-passing out; and the state’s witnesses so testified. Under this view of the testimony, we think the admission of the testimony complained of was harmless. Besides, the court in his ehax’ge to the jury charged the jury that if they believed from the evidence or had a reasonable doubt thereof that the negro-porter, “Cowboy,” transported or delivered the liquor in evidence to Andrews to acquit the defendant. We think, in view of the charge and all the facts and circumstances in the case, that there could possibly be no error in the admission of said testimony.

The court submitted the second count-in the indictment to the jury in his charge on transportation, and the jury returned a verdict finding defendant guilty of said second count in the indictment, but the judgment adjudges the defendant guilty of unlawful possession of intoxicating liquor, and the sentence follows said judgment and states that the appellant has been found guilty of unlawful possession of intoxicating liquor. This being an error patent upon the face of the record, and one this court is authorized to correct and reform, under R. S. 1925, art. 847, O. O. P. (Vernon’s Statutes, art. 938, Q. C. P.), this court accordingly hereby corrects and reforms said judgment and sentence to read that said defendant is and has been adjudged guilty of unlawfully transporting intoxicating liquor, in lieu of possession of intoxicating liquor, and with said correction of said judgment and sentence of the trial court so reformed, the judgment is here now affirmed:

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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