
    GRAY v. STATE.
    (No. 10831.)
    Court of Criminal Appeals of Texas.
    June 15, 1927.
    Rehearing Denied Oct. 19, 1927.
    1. Criminal law <&wkey;>'774 — Refusal to1 direct1 acquittal, If defendant did not know right from wrong because of drinking intoxicant, held not error, where court offered' to charge on temporary insanity (Pen. Code 1925, art. 36).
    Refusal of special charge to acquit, if defendant’s mind was in such condition from drinking intoxicating liquor shortly before offense charged that he did not know right from wrong, held not error, where court offered to give charge, not requested by defendant, on law as to temporary insanity due to recent use of ardent spirits, under Pen. Code 1925, art. 36.
    2. Intoxicating liquors <&wkey;233(2) — Officers’ testimony as to finding intoxicants in house, from which defendant obtained whisky sold to them, held admissible.
    In trial for selling and possessing intoxicating liquor, arresting officers’ testimony as to searching and finding intoxicating liquor in house, from, which defendant had obtained whisky sold to them, held admissible, as against objections that defendant was not connected with transaction, and that house was not his.
    
      3. Indictment and information <3^=»132(5) — Refusal to compel election between counts for selling and possessing whisky held not error, where evidence of single transaction applied to both.
    Where state’s evidence, relating to single transaction, applied both to alleged sale of whis-ky and possession thereof for sale, court did ■ not err in refusing to compel state to elect on which of such counts of indictment it relied for conviction.
    4. Criminal law <&wkey;984 — Sentence and judgment on both counts for selling and possessing whis-ky after general verdict assessing minimum punishment held erroneous.
    Where court submitted both .counts of indictment for selling and possessing intoxicating liquor and jury returned general verdict of guilty, assessing minimum punishment, court erred in entering sentence and judgment on both counts, but should have applied judgment and sentence to one count sustained by evidence.
    Commissioners’ Decision.
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    W. D. Gray was convicted of unlawfully selling and possessing intoxicating liquor, and he appeals.
    Reformed, and affirmed as reformed.
    Eugene Mathis, of Wichita Palls, for appellant.
    Sam D. Stinson, State’s Atty., and Roht. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted of unlawfully selling and possessing intoxicating liquor, and his punishment assessed 'at one year in the penitentiary.

The appellant was charged in the first count of the indictment with unlawfully selling whisky to Wade Taylor, and in the second count with the unlawful possession of whis-ky for the purpose of sale. The record discloses that the officers Wade Taylor and R. L. Gay observed the appellant, who was intoxicated at the time, in an alley, and asked him if he knew where they could get a drink, whereupon the appellant offered to show them where they could get plenty if they had the money. The appellant .got in the automobile with the officers and went with them to the house of his brother-in-law John Ashley. He entered the house and returned shortly thereafter with a half pint of whisky, which he delivered to the officers and for which he was paid $1.50. It appears that the appellant was not acquainted with the officers, and in going to the house of his brother-in-law informed them that he had been “bootlegging” about 20 years.

Appellant took the stand in his own behalf and testified that a short time prior to the alleged sale he took a drink of what he supposed was denatured alcohol with some of his friends, and that during the time in question he did not know what he was doing, and did not know anything at all until the following morning, when he woke up in jail.

The record contains three bills of excep-, tion.

In bill No. 1 appellant complains of the refusal of the court to submit to the jury his special charge to the effect that, if his mind, at the time of the alleged transaction, was in such a condition that he did not know right from wrong, to acquit him. The court qualifies this bill by stating that he offered to give in lieu of said requested charge the law relating to temporary insanity produced by the voluntary recent use of ardent spirits. It appears that the appellant failed to request a special charge under this law (article 36, P. C.), which does not exonerate one who commits an offense while temporarily insane due to the recent use of ardent spirits, but permits the introduction of evidence on this issue in mitigation of the penalty. This bill presents no error. For collation of authorities, see article 36, Vernon’s P. C.

In bill No. 2 complaint is made to the action of the court in permitting the state to prove by the officers that, after arresting appellant and placing him in jail, they obtained a search warrant, searched the residence of John Ashley, and there found intoxicating liquor. The objection urged to this testimony was that same was immaterial; that, the appellant was not connected in any way with th'e transaction; and that it was not his house. The court, in qualifying this bill, states that it was the same house from which the appellant obtained the whisky in question. There is no error shown in the admission of this testimony.

In bill No. 3 complaint is made to the refusal of the court, upon request of appellant, to compel the state to elect upon which count of the indictment it relied for a conviction. The evidence introduced by the state appeared to apply only to one transaction, and was applicable both to the alleged sale and to the possession of the whisky for sale. Under such circumstances, there was no error in the court’s failure to compel an election upon the part of the state. Hooper v. State, 94 Tex. Cr. R. 278, 250 S. W. 694; Meadors v. State, 101 Tex. Cr. R. 336, 275 S. W. 829.

However, the court having submitted both counts to the jury and the jury having returned a general verdict of guilty assessing the minimum punishment, it was error for the court to enter sentence and judgment against the appellant on both counts of the indictment. The court should have applied the judgment and sentence to one of the counts in the indictment that was sustained by the evidence. Said judgment and sentence are now reformed so as to apply only to the second count, charging possession of liquor for the purpose of sale. Rambo v. State, 96 Tex. Cr. R. 887, 258 S. W. 827. For collation of authorities, see article 847, note 14, Vernon’s C. C. P.

Finding no reversible error in the record, the judgment of the trial court, as reformed, is 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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