
    COURSEY v. STATE.
    (No. 8081.)
    (Court of Criminal Appeals of Texas.
    March 5, 1924.
    Rehearing Denied April 16, 1924.)
    1. Intoxicating liquors <&wkey;236(l I) — Evidence held to sustain conviction for selling.
    Testimony of a witness that he bought a bottle of whisky from defendant and paid for it, coupled with court’s judicial knowledge that whisky is intoxicating, held to sustain conviction for selling intoxicating liquor.
    On Motion for Rehearing.
    2. Criminal law <g=»878(2) — Sentence applying ■to one of two counts, general verdict of guilty, not assessing lowest punishment, sustained.
    Where the indictment charged sale and delivery of intoxicating liquor in separate counts, and the evidence showed a single transaction, held, that the court properly applied a general verdict of guilty, assessing punishment at more than the minimum, to the count charging a sale, as against the objection that the minimum penalty was not given.
    other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Mitchell County; W. P. Leslie, Judge.
    F. C. Coursey was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    L. W. Sandusky, of Colorado, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district -court of Mitchell .county of selling intoxicating liquor, and his punishment fixed at two years in the penitentiary.

There were two counts in the indictment, one charging the selling of intoxicating liquor, and the other the delivering of such liquor. Both were submitted to the jury, which returned a general verdict. This was applied by the court in his judgment to the count charging the selling of liquor, and the sentence followed the judgment. This was permissible. Rambo v. State (Tex. Cr. App.) 258 S. W. 827, No. 7431, opinion delivered October 24, 1923.

No bills of exception were reserved, and the statement of facts seems ample to support the conclusion of guilt. The witness Who purchased from appellant testified that he bought and paid for a bottle of whisky. This court has stated in many opinions its judicial knowledge of the fact that whisky was intoxicating.

There being no error in the record, an af-firmance will be ordered.

On Motion for Rehearing.

Appellant insists that, because the indictment contained two counts and the verdict was general and did not assess the lowest penalty, we erred in affirming his case. He cites 246 S. W. 377; 247 S. W. 520; 249 S. W. 497 ; 251 S. W. 229; 252 S. W. 550, and 256 S. W. 273. The styles of these causes are not given, and we regret that we could not find the last citations.

Appellant was charged in one count in the indictment with the sale of liquor and in the other count with the delivery of same. The evidence showed only one transaction, and there was therefore neither need nor request for an election, and the learned trial judge charged the jury applicable to the facts as foUows:

“Therefore, gentlemen of the jury, if you find from the evidence in this case, beyond a reasonable doubt, that the defendant, E. 0. Oour-sey, did, on or about October 20, 1922, in Mitchell county, Tex., sell or deliver whisky to B. E. Dale, then you will find the defendant guilty as charged in the indictment, and assess his punishment at confinement in the state penitentiary of Texas for a period of years not less than one nor more than five.”

The verdict found appellant guilty as charged, and assessed his punishment at two years. The court applied same to the count charging a sale, and the judgment and sentence were for that offense. No complaint of the verdict, judgment, or sentence was made in the court below. The course pursued by the learned trial judge has met with the approval of this court in many cases, a few of which are cited: Alexander v. State, 31 Tex. Cr. R. 359, 20 S. W. 756; Shuman v. State, 34 Tex. Cr. R. 69, 29 S. W. 160; Southern v. State, 34 Tex. Cr. R. 144, 29 S. W. 780, 53 Am. St. Rep. 702; Rosson v. State, 37 Tex. Cr. R. 87, 38 S. W. 788.

Appellant misinterprets the effect of our holdings in the cases cited by him. An inspection of those decisions reveals that either the judgment or sentence in the given ease fixed the guilt of two offenses, or the court below failed to apply a general verdict to an applicable count under the facts, or the record showed a general verdict and judgment following the submission of a count so defective as to not support any judgment. We know of no case where the record shows but one - transaction, wherein the verdict has been applied to a count supported by the proof, which was reversed by this court because the minimum penalty was not given to the accused.

Believing the former opinion to correctly announce the law, the motion for rehearing will be overruled.  