
    DAY v. STATE.
    (No. 10141.)
    (Court of Criminal Appeals of Texas.
    Oct. 6, 1926.)
    1. Indictment and information <©=>41 (2).
    If no complaint is on file as basis for information for larceny, prosecution should be dismissed under Vernon’s Ann. Code Cr. Proc. 1925, art. 415, note 5.
    2. Criminal law <©=>29.
    Where information charged theft of seed cotton, and, in another count, theft of cotton sack, and evidence showed that cotton and sack disappeared at same time, conviction and sentence for separate offenses held unauthorized.
    Appeal from Lampasas County Court; J. Tom Higgins, Judge.
    Lee Day was convicted of larceny, and he appeals.
    Reversed and remanded.
    T. S. Alexander and H. F. Lewis, both of Lampasas, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   HAWKINS, J.

[1].This prosecution is by information. ■ The record contains no complaint as a basis for the information. In such condition no jurisdiction is shown in the county court. Article 415, C. C. P. 1925. Wadgymar v. State, 21 Tex. App. 459, 2 S. W. 768; Diltz v. State, 56 Tex. Cr. R. 127, 119 S. W. 92. Other authorities are annotated in note 5 under said article 415 in volume 1, Vernon’s 1925 C. C. P. We have not based disposition of the appeal on the defect in tne record pointed out, assuming that the clerk in preparing the transcript omitted the complaint, but, if in fact no complaint is on file supporting the information, the trial court is directed to dismiss the prosecution. Such would be the proper and necessary order of this court if reversal was not called for upon other grounds.

In one count the information charges appellant with the theft of 380 pounds of seed cotton of the value of $20 from Ernest Smith on October 31, 1925. In another count he is charged with theft of a cotton sack; valued at $1.50 from the same party on the same date. The court’s charge is so worded. as authorized separate conviction upon each count, even though the evidence shows that the cotton and cotton sack were taken at the same time, which would constitute but one offense. No objection was made to the charge; if so the record fails to show it. The jury returned a verdict finding appellant “guilty of stealing the cotton and cotton sack, and assess his punishment at six months in jail for- each offense, without fine.” This verdict was received by the court, and judgment entered thereon condemning appellant to confinement in the county jail for twelve months.

Appellant urged in his motion for new trial that the verdict finds no support in the evidence because it shows only one violation of the law, for which two penalties cannot be inflicted. We think this contention must be sustained. This is not an instance where in separate counts distinct misdemeanor offenses are charged, in which case it has been held convictions might be had for the separate offenses proved and penalties assessed for each offense. See Blackwell v. State, 92 Tex. Cr. R. 473, 244 S. W. 532, and authorities therein cited. The two counts in the present information might charge separate misdemeanor thefts, but, when the evidence is looked to, only one offense is shown to have been committed. The cotton was in the field in a pile, on top of which was the cotton sack. The sack and cotton disappeared at the same time. There is nothing in the evidence to indicate they were taken at different times. On the other hand, the logical conclusion from the evidence is that the theft of the sack and cotton was one transaction, consummated at a single “taking,” and constituting but one offense.

For the reasons stated, the judgment must be reversed and the cause remanded.  