
    JONES v. STATE.
    (No. 8884.)
    (Court of Criminal Appeals of Texas.
    June 10, 1925.)
    Criminal law <§=>884 — Verdict held to require a reversal, where uncertain as to amount of punishment inflicted.
    Verdict of guilty on each count of indictment charging defendant with driving an automobile on a public road while intoxicated, and with driving an automobile on a public road while in a degree under the influence of intoxicating liquor, and assessing his punishment at 60 days in county jail, being more than minimum penalty, held to require a reversal, as being uncertain whether jury intended to punish defendant on each count in indictment at 60 days in jail, or for 60 days only for both counts.
    Commissioners’ Decision.
    Appeal from District Court, Callahan County ; W. R. Ely, Judge.
    Red Jones was convicted of driving an a,u-'tomobile while intoxicated, and while in a degree under the influence of intoxicating liquors, and he appeals.
    Reversed and remanded.
    S. E. Damon, of Austin, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State. '
   BAKER, J.

We have concluded that the original opinion in this case should be, and same is, hereby withdrawn, and in lieu thereof the following opinion be substituted therefor:

The indictment herein having charged the appellant in the first count with driving an automobile upon a public road while intoxicated, and in the second count with driving an automobile upon a public road while in a degree under the influence of intoxicating liquors, and the court having submitted both of said counts to the jury, and the jury returned a verdict of guilty on each count, and assessed the punishment at 60 days in the county jail, being more than the minimum penalty, and the judgment entered in keeping with said verdict, we are of the opinion that the verdict is so uncertain and indefinite that same requires a reversal of this case. The appellant being convicted of a- felony, and the verdict of guilty being on two separate counts, assessing more than double the minimum penalty, renders same uncertain as to whether the jury intended to punish appellant upon each count in the indictment at 60 days in jail on each count, or for 60 days-only for both counts. If it was intended for the former, the penalty would aggregate 120' days ; and if the latter, 60 days.

This uncertainty, we think, requires a reversal of this case. Williams v. State (delivered April 22, 1925) 271 S. W. 628; Venturi v. State (delivered May 13, 1925) 272 S. W. 211; Nelson v. State, 97 Tex. Cr. R. 210, 261 S. W. 1046; Modica v. State, 94 Tex. Cr. R. 403, 251 S. W. 1049; Banks v. State, 93 Tex. Cr. R. 117, 246 S. W. 377; Rambo v. State, 96 Tex. Cr. R. 387, 258 S. W. 827. While we-believe the statute in question embraces only-one felony, describing two means of its violation, yet we believe the authorities supra, cover the questions herein discussed, and cover the principles herein announced. The-court should not have instructed the jury to ■ find a verdict in both counts, nor have received such a verdict.

For the reasons above stated; the judgment of the trial court is reversed, and the cause-remanded.

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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