
    BRIGGS v. STATE.
    (No. 11179.)
    Court of Criminal Appeals of Texas.
    Nov. 23, 1927.
    1. Indictment and information <&wkey;203 — Application by court of general verdict of guilty to valid count In indictment held not error.
    Where indictment was in two counts, one for unlawful possession of equipment for manufacturing intoxicating liquor and the other for manufacturing intoxicating liquor, and general verdict of guilty was returned and court applied such verdict to first count in indictment, which was valid and sufficiently supported by evidence, such action held not erroneous. ‘
    2. Criminal law <&wkey;>4 172(8) — Instruction as to testimony of accomplice, if error, held harmless, where other evidence was sufficient to sustain verdict of guilty.
    Instruction as to testimony of accomplice, if error, held harmless, where evidence was sufficient to sustain verdict of guilty without testimony of accomplice.
    Commissioner’s Decision.
    Appeal from District Court, Panola County; R. T. Brown, Judge.
    
      Claude Briggs was convicted of possession of equipment for tlie manufacture of liquor capable of producing intoxication, and be appeals.
    Affirmed.
    Long & Long, of Cartbage, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for tbe State.
   MARTIN, J.

Tbe indictment against appellant is in two counts; tbe first charging appellant .with tbe unlawful possession of equipment for tbe manufacture of intoxicating liquor capable of producing intoxication, and tbe second with tbe unlawful manufacture of intoxicating liquor. A general verdict of guilty was returned into court, assessing punishment at one year’s confinement in the penitentiary. Judgment was entered •applying tbe verdict to tbe first count of tbe indictment. This action of the court is assigned as error.

Where a general verdict of guilty is returned.assessing tbe lowest punishment, and the court applies such verdict to one of tbe valid counts in tbe indictment, sufficiently supported by the evidence, bis action is not erroneous. Hooper v. State, 94 Tex. Cr. R. 278, 250 S. W. 694; Meadors v. State, 101 Tex. Cr. R. 336, 275 S. W. 829; Coursey v. State, 97 Tex. Cr. R. 47, 260 S. W. 851.

We think this, court would have authority to enter an order reforming a judgment in •cases of this character so as to make tbe verdict apply to tbe valid count having support in tbe evidence. Davidson v. State, 86 Tex. Cr. R. 243, 216 S. W. 624. In tbe instant case ample evidence is shown in tbe record to sustain the first count, and appellant’s assignment is therefore overruled.

Tbe state in tbe trial of this case used tbe evidence of an accomplice. Tbe court’s charge on accomplice testimony is practically a literal copy of tbe charge set out as correct in Branch’s Penal Oode, § 709. This' charge does not sufficiently or accurately state the law as a general proposition, and we again call tbe attention of trial courts to this fact. A further discussion would only be a useless repetition of a matter already exhaustively discussed. See Standfield v, State, 84 Tex. Cr. R. 437, 208 S. W. 532; Walker v. State, 94 Tex. Cr. R. 653, 252 S. W. 543; Abbott v. State, 94 Tex. Cr. R. 31, 250 S. W. 188.

Tbe giving of such a charge, however, is not always reversible error. In this case tbe sheriff and bis deputy testified to facts against appellant sufficient, in our opinion, under proper instructions from tbe court, to sustain a verdict of guilty without tbe testimony of the accomplice. Under such circumstances, tbe error, if any, was harmless. Watson v. State, 90 Tex. Cr. R. 576, 237 S. W. 298; Walker and Howard v. State, 104 Tex. Cr. R. 26, 282 S. W. 245.

Finding no error in the record, tbe judgment is affirmed.

PER CURIAM. Tbe foregoing opinion of tbe Commission of Appeals has been examined by .the judges of tbe Court of' Criminal Appeals and approved by tbe court. 
      <g=»For other oases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes
     