
    HUFFHINES v. STATE.
    (No. 7226.)
    (Court of Criminal Appeals of Texas.
    May 2, 1923.)
    1. Indictment and information &wkey;>132(5)— No error in refusing to require state to elect between co.unts of indictment.
    There was no error in refusing to require state to elect as between a count for manufacturing intoxicating liquors and another charging unlawful possession, there being no testimony pertinent to one count that would not also be pertinent to the other, in view of an instruction directing the jury to specify the' count under which conviction, if any', resulted.
    2. Criminal law <&wkey;878(2) — GeneiraB verdict and judgment held erroneous in a prosecution under separate counts.
    In a prosecution under separate counts for manufacturing and unlawful possession of intoxicating liquor, where the court instructed the jury to specify the count under which conviction, if any, resulted, it was error for the court to receive a general verdict thereon adjudging defendant to be guilty of two felonies under one indictment upon one trial.
    3. Criminal law <&wkey;!184 — Receiving general verdict adjudging defendant guilty of two felonies cannot be corrected; on appeal.
    Receiving general verdict and thereon adjudging defendant to be guilty of two felonies under one indictment upon one trial cannot be corrected upon appeal, the jury having ignored the court’s charge to designate the count on which they found accused guilty, and thus may have also assessed a duplicate punishment.
    4. Jury <©=»7.9(l) — Denial of motion.requesting placing of names of jurors in receptacle, and drawing therefrom, error.
    Court erred in denying a motion requesting the court'to order the names of all available jurors for the week to be placed in a receptacle and have the names of a sufficient number drawn from it to select 12 men to try- the case, the county maintaining more than three district courts and coming under the terms of what is designated as the “Interchangeable Jury Law” (Acts 1917, c. 78 [Yernon’s Ann. Civ. St. Supp. 1918, art. 5158%£]).
    5. Criminal law &wkey;>7l9(I) — Argument of state’s counsel held improper.
    It was improper and hurtful for assistant district attorney in his argument to state, “It is the opinion of all of the neighbors of this defendant that he was manufacturing whisky; that is why the officers went out there” — being outside of the record, improper, and material.
    Appeal from Criminal District Court; Dallas County; Robert B. Seay, Judge.
    Elmo Huffhines was convicted of violation of the Dean Liquor Law, and appeals.
    Reversed and remanded.
    A. H. Mount and M. T. Lively, both of Dallas, for appellant.
    W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for violation of certain provisions of the Dean Liquor Law (Yernon’s Ann. Pen. Code. Supp. 1922, art. 588% et seq.), with punishment assessed at two years’ confinement in the penitentiary.

The indictment contained four counts. Upon motion of appellant the third count was quashed. The second was not submitted to the jury. The first count charged the unlawful manufacture of intoxicating liquor; the fourth, the unlawful possession thereof for the purpose of sale. On, account of the disposition we think necessary to make, the case, we do not deem it important to set out the evidence. After the state had rested its case, appellant presented a motion requesting that the state be required to elect upon which count it would rely for conviction. This motion was overruled and the first and fourth counts submitted. The court recognized that appellant' should not be convicted of more than one felony and specifically instructed the jury to let their verdict show upon which count, if any, they predicated guilt. They were also instructed that they could not assess but one punishment if .they convicted. The motion ten elect was followed by objection to the charge in submitting more than one count. The verdict found defendant guilty “as charged in the indictment” and assessed his punishment at two years in, 'the penitentiary. Notwithstanding the jury were told to specify under which count they found appellant guilty, and this instruction was disregarded, the court nevertheless received the general verdict, and entered thereon a judgment condemning appellant to be guilty both of the manufacture of intoxicating liquor and possession thereof for the purpose of sale.

The evidence introduced by the state sustained both counts. There appears to have been no testimony pertinent to proving the offense charged in the first count that would not also have been receivable in establishing the offense charged in the second, and vice versa. Under these circumstances we think there was no error in refusing to require the state to elect, in view of the instruction directing the jury to specify the count under which conviction, if any, resulted. Banks v. State (Tex. Cr. App.) 246 S. W. 377; Smith v. State, 90 Tex. Cr. R. 273, 234 S. W. 893; Vernon’s Tex. Cr. St. vol. 2, p. 245, note 33; Bishop’s New Crim. Proc. vol. 1, § 457, p. 376; Hooper v. State (No. 7098) 250 S. W. 694, opinion April 25, 1923. The trouble arises from receiving the general verdict returned in violation of the court’s instruction, and thereon adjudging appellant to be guilty of two felonies under one indictment upon one trial. Banks v. State (Tex. Cr. App.) 246 S. W. 377; Knott v. State, 247 S. W. 520; Knott v. State (Tex. Cr. App.) 247 S. W. 522; Zilliox v. State (Tex. Cr. App.) 247 S. W. 523; Wimberley v. State (Tex. Cr. App.) 249 S. W. 497, opinion March 21, 1923. Many authorities are cited in the cases referred to. It is not one of those instances where this court can correct the judgment. If the lowest penalty had been inflicted, perhaps a different rule might apply. Having ignored the court’s charge to designate the count upon which they found appellant guilty, the jury may also have assessed a double punishment in violation of the charge. We must therefore of necessity hold the judgment harmfully erroneous.

Appellant presented a motion requesting the court to order the names of all available jurors for the week to be placed in a receptacle, and that from the total of available jurors the names of a sufficient number be drawn from which to select 12 men to try the case. This request was refused and bill of exception reserved. Dallas county maintains more than three district courts, and therefore comes under the terms of what is designated as the “Interchangeable Jury Law.” Acts 1917, c. 78, Complete Texas Statutes, arts. 5158% to 5158%i, inclusive (Vernon’s Ann, Civ. St. Supp. 1918, arts. 5158%-5158%i). The refusal of the court to grant the motion brings in review article 5158%f of such' “Interchangeable Jury Law.” It is not necessary to write at length: The identical question here presented was before us in Bell v. State, 92 Tex. Cr. R. 342, 243 S. W. 1095, which is authority sustaining appellant’s contention.

While the assistant district attorney was making his argument, a bill of exception was taken to the following language used by him:

“It is the opinion of all of the neighbors of this defendant that he was manufacturing whis-ky; that is why the officers went out there.”

The argument was outside the record, improper, material, and hurtful. It was injecting a new issue not supported by the facts in evidence. Stanchel v. State, 89 Tex. Cr. R. 358, 231 S. W. 120; Cole v. State (Tex. Cr. App.) 243 S. W. 1100; Woolly v. State (Tex. Cr. App.) 247 S. W. 865; Clancy v. State (Tex. Cr. App.) 247 S. W. 865; Todd v. State (Tex. Cr. App.) 248 S. W. 695.

Appellant requested a charge upon circumstantial evidence which was refused. Unless we misapprehend the facts, if they should be the same upon another trial, we are inclined to the view that such charge should be given.

For the errors pointed out, the judgment is reversed, and the cause remanded. 
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