
    KENNEDY v. STATE.
    (No. 9631.)
    (Court of Criminal Appeals of Texas.
    Dec. 2, 1925.)
    í. Indictment and information &wkey;>!32(5)— Submission to jury of both counts in indictment, each charging distinct liquor offense, held not error.
    Submission to jury of both counts in indictment, one charging unlawful possession of equipment for manufacturing intoxicating liquor, and the other unlawful manufacturing of intoxicating liquor, held not error, as each grew out of same transaction.
    2. Criminal law >&wkey;798!/2 — Submission to jury of more than one count requires instruction that jury state in verdict upon which count verdict is based.
    When more than one count, each charging separate and distinct felony offenses, is submitted tc jury, court must instruct jury to state in their verdict upon which count in indictment they render their verdict.
    Commissioners’ Decision.
    Appeal from District Court, Bowie County; Hugh Carney, Judge.
    Jim Kennedy was convicted of possessing equipment for the manufacture of intoxicating liquor, and appeals.
    Reversed and remanded.
    Sid Crumpton, of Texarkana, and Johnson & Waters, of New Boston, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

The appellant was convicted -in the district court of Bowie county, and his punishment assessed at two years in the penitentiary.

There are three counts in the indictment— the first charges unlawful possession of mash, still, etc., for the purpose of manufacturing intoxicating liquors; the second, the unlawful' manufacturing of intoxicating liquors; and, third, the unlawful possession of intoxicating liquors for the purpose of sale.

The appellant moved the court to have the state elect which count it would rely for conviction, which the court overruled, and submitted in his charge to the jury the first and second counts in the indictment, and, in response thereto, the jury returned a general verdict finding the defendant guilty as charged in the indictment. Upon this verdict the court rendered judgment, adjudging the defendant guilty of the offense of possessing equipment for the manufacturing of intoxicating liquor, and sentenced him accordingly. The appellant excepted and objected to the court’s charge, because of the submission by the court to-the jury of the two said counts in the indictment, each charging a separate and distinct felony. We think the court was not in error in submitting to the jury both counts in the indictment charging distinct felony offenses, as same grew out of the same transaction, but erred in not instructing the jury to state in their .verdict which count the verdict was based upon, and in permitting the jury to return a general verdict thereon, because said verdict is uncertain as to whether the jury returned their verdict on one or both counts in the indictment, and, if on one count, which one. This court has held in a numbér of cases that the defendant cannot be convicted of two separate, and distinct felony offenses of the kind in question, and it is the duty of the court, when more than one count is submitted to the jury, to have the jury state in their verdict which count in the indictment they render their verdict upon. Banks v. State, 93 Tex. Cr. R. 117, 246 S. W. 377; Wimberley v. State, 94 Tex. Cr. R. 1, 249 S. W. 497; Huffhines v. State, 94 Tex. Cr. R. 292, 251 S. W. 229; Jones v. State (Tex. Cr. App.) 274 S. W. 566, and authorities therein cited.

For the reasons above stated, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

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. 
      <gzxoFor other cases see same topic and KEY-NUMBER, in all Key-Numbered, Digests and Indexes
     