
    GARRISON v. STATE.
    (No. 7952.)
    (Court of Criminal Appeals of Texas.
    June 4, 1924.)
    I. indictment and information 132(5) — Refusal to require election of counts held without error.
    Where facts in rape prosecution were such that state could rely on either count charging rape by force or rape without consent, refusal to require election as to count relied on was not error.
    
      Z- Criminal law cg=p878(l) — Verdict cannot find defendant guilty on two counts.
    Where first count in indictment for rape charged rape by force and second count rape of female under eighteen, evidence raised an issue as to whether the act was accomplished by force or consent, the court’s charge authorized the jury to base their verdict -upon “either or both” counts, and the jury found accused guilty under both counts, and fixed the punishment at four times the minimum, judgment of conviction based upon such verdict could not stand.
    Appeal from District Court, Cameron County; A. W. Cunningham, Judge.
    Cecil Garrison was convicted of rape, and he appeals.
    Reversed and remanded.
    Wells & Galbraith and Seabury, George & Taylor, all of Brownsville, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for rape, with the punishment assessed at 20 years in the penitentiary. The disposition we find necessaiy to make of the ease does not call for a statement of the evidence.

The indictment contained two counts, the first charging rape of Viola Guthrie hy force, and without her consent; the second charging rape of said female, she being under the age of 18 years. Appellant requested that the state be required to elect upon which count it would rely for a conviction. This request was refused. We think the court not in error in this regard. The facts were such that the state could rely upon either count without the necessity of declaring upon which they sought conviction. However, both counts were submitted to the jury, and in that connection the jury were instructed as follows:

“In arriving at yóur verdict, should you find defendant guilty as charged in either count in said indictment, you will state which count, either or both, of which you find defendant guilty.”

A specific exception was directed to the charge just quoted because the same was “ambiguous, duplicitous, and inconsistent, and permits double conviction under two offenses of different character.” Notwithstanding the exception calling the court’s attention to the particular' matter complained of, the learned trial judge declined to amend his charge, and it went to the jury as originally written. The verdict returned reads as follows:

“We,.the jury, find the defendant, Cecil Garrison, guilty in both first and second counts as charged in the indictment, and assess his punishment at 20 years’ confinement in the penitentiary,”

The judgment is general, condemning appellant to be guilty of the offense of rape as found by the jury. The verdict was assailed in the motion for new trial as being one upon which a judgment couid not properly be entered, and it is now contended here that the judgment cannot stand upon the verdict as returned.

The first count in the indictment charged rape by force without consent. If the alleged injured female consented to intercourse, there could be no conviction under the first count. Parks v. State, 92 Tex. Cr. R. 59, 241 S. W. 1015; Morgan v. State (Tex. Cr. App.) 50 S. W. 718; Nicholas v. State, 23 Tex. App. 317, 5 S. W. 239; Moore v. State, 20 Tex. App. 275; Jenkins v. State, 34 Tex. Cr. R. 201, 29 S. W. 1078. Evidence offered by appellant, if believed by the jury, raised an issue as to whether the act of intercourse (if accomplished at all) was by force or by consent. The testimony of prosecutrix that it was accomplished by force and without her consent was challenged by other evidence in the case. Appellant admitted an assault, but denied penetration of the person of pros-ecutrix with his private part, but admitted a partial digital penetration. In this condition of the record the court authorized the jury to base their verdict upon “either or both counts” in the indictment; the jury availed themselves of the privilege thus given, and found appellant to be guilty under both counts, and fixed the punishment at four times the minimum. Can the judgment based upon such a verdict stand? As throwing light upon the general subject, we refer to Banks v. State, 93 Tex. Cr. R. 117, 246 S. W. 377; Knott v. State, 93 Tex. Cr. R. 239, 247 S. W. 520; Zilliox v. State, 93 Tex. Cr. R. 301, 247 S. W. 523; Wimberley v. State, 94 Tex. Cr. R. 1, 249 S. W. 497; Huffhines v. State, 94 Tex. Cr. R. 292, 251 S. W. 229; Nowells v. State, 94 Tex. Cr. R. 571, 252 S. W. 550, and the various authorities cited in those cases. Many of them are not directly in point, and are not cited as being so, but upon the general principle involved. However, Modica v. State, 94 Tex. Cr. R. 403, 251, S. W 1049 (opinion on rehearing at page 1053), is directly in point and decisive of the question here involved. In that case the defendant was charged in the first count of the indictment with the theft of property alleged to belong to F. W. Nason, and in the fifth count with the theft of property alleged to belong to the Beaumont, Sour Bake & Western Railroad Company, Inc. Nason was the agent of the railroad, and the transaction alleged in both counts was the same. The verdict of the jury found defendant to be guilty under the second and fifth counts, and assessed his .punishment at 7 years’ confinement in the penitentiary. The judgment was general, condemning defendant to be guilty of the crime of theft. We quote from the opinion on rehearing as follows: (

“From this [that is, the verdict] it appears that the jury have found appellant guilty of two felonies. This they had no rigjit to do under our settled procedure. O’Bryan v. State, 27 Tex. App. 339, 11 S. W 443; Crawford v. State, 31 Tex. Cr. R 54, 19 S. W. 766; Carr v. State, 36 Tex. Cr. R. 3, 34 S. W. 949; Pitts v. State, 40 Tex. Cr. R. 667, 51 S. W. 906; Lovejoy v. State, 40 Tex. Cr. R. 89, 48 S. W. 520.
“It is the duty of the courts to indulge every reasonable intendment in upholding the verdicts of juries. In doing this we have applied in some cases general verdicts to some one count submitted, where more than one appear, provided the punishment fixed be such as that it can be concluded, that the jury intended to punish in but one case. General verdicts with minimum punishments have also been applied to good counts in cases where others were defective, but we know of no case in this state which upholds the doctrine that a verdict specifically finding the .-accused guilty under more than one count in a felony ease, which affixed a punishment greater than the minimum, could be upheld.”

The language just quoted is pertinent to the instant case. The learned trial judge was right in declining to require the state to elect upon which count they would seek a conviction, but fell into error in failing to direct the jury to specify in their verdict under which count, if either, they found appellant guilty, and in leaving them under the instruction given, the privilege of finding guilty under both counts.

Many other interesting questions are presented in the brief for appellant, but we pretermit a discussion of them, as they may not arise in the same form upon another trial.

For the error discussed, the judgment is reversed, and the cause remanded. 
      
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