
    ROZIER v. STATE.
    (No. 6402.)
    (Court of Criminal Appeals of Texas.
    Nov. 9, 1921.
    Rehearing Denied Nov. 30, 1921.)
    1. Intoxicating liquors <@=>132 — -Indictment for transporting not quashed because of conflict between state and federal law.
    In a prosecution for transporting intoxicating liquor, a motion to quash the indictment because the state law was in conflict with the federal law on the subject was properly overruled.
    On Motion for Rehearing.
    2. Criminal law 1133 — Where evidence applicable to both counts, one of which was defective, rehearing denied, though jury returned general verdict.
    Though a jury to which was submitted both counts of an indictment charging unlawful possession and transportation of intoxicating liquors, the former of which was defective in view of the amendment to the liquor law (Acts 37th Leg. [1921] 1st and 2d Called Sess. c. 61), in that it failed to allege that such possession was for the purpose of sale, returned a general verdict, a motion for rehearing will be overruled, where all the evidence was equally pertinent toward establishing the truth of both counts, but the judgment and sentence will be so amended and corrected as to apply the conviction to the count for unlawful transportation alone.
    Appeal from District Court, Franklin County; R. T. Wilkinson, Judge.
    Clyde Rozier was convicted of unlawfully transporting intoxicating liquor, and he appeals.
    Affirmed. Motion for rehearing overruled, but judgment and sentence amended and corrected.
    L. W. Davidson, of Sulphur Springs, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction was for unlawfully transporting intoxicating liquor. Punishment one year in penitentiary.

There are no bills of exceptions in the record. Appellant’s motion to quash the indictment because our law is in conflict with the federal law upon the subject of intoxicating liquor was properly overruled. Franklin v. State, 230 S. W. 692; Ex parte Gilmore, 228 S. W. 199.

Appellant urges in his motion for new trial that the evidence shows he was acting under duress in his connection with the whisky, and therefore this conviction should be set aside. We fail to discover any such duress as will excuse a party for violating the law. Article 44, Vernon’s P. C.; Burton v. State, 51 Tex. Cr. R. 201, 101 S. W. 226.

The judgment of the trial court will be affirmed.

On Motion for Rehearing.

The opinion states that appellant was convicted for “unlawfully transporting intoxicating liquor.” We were in error to this extent. The indictment charged.him in one count with the unlawful “possession,” and in another with unlawful “transportation.” Both counts were submitted to the jury, a general verdict of guilty was returned, and judgment and sentence was for both possession and transportation. The contention is now made that since the amendment (1st and 2d Called Session 37th Leg. p. 233) it is not a violation of the law to possess intoxicating liquor unless for the purpose of sale, and the count for that offense is now defective; the verdict being general, it is urged that a motion for rehearing should be granted. Conceding the correctness of the proposition that the count for “possessing” is now bad, it does not follow by any means that the motion for rehearing is good. Mr. Bishop, in his New Criminal Procedure (volume 1, § 1015, subds. 2 and 4), has stated the rule very clearly.

Subdivision 2: “On a bad count, mingled with good ones, the court has no right to receive evidence against the defendant’s objection. Properly the ill count should be quashed. If it is not, and the court refuses to exclude evidence applicable only to it, and does not direct the verdict to be limited to the good count, a general finding of guilty will be set aside.”
Subdivision 4: “If good and bad counts appear together at the sentence or on error, all having been treated at the trial as good, and no objection to the evidence having been saved, the case is the same as when any other incompetent evidence was introduced with the defendant’s tacit consent. He cannot now complain of it, but he can object to being sentenced on a bad count, as is elsewhere shown. Still, treating the bad count as surplusage, he may be sentenced on the good counts. Moreover, a general sentence on good and bad counts is not reversible on motion in arrest of judgment or on error if sustained by the good ones.”

There was no evidence introduced in this case applicable alone to the charge for “possessing.” All the evidence was equally pertinent towards establishing the truth of both counts. If objections had been urged, they would not have been tenable in so far as being applicable alone to what is now the bad count. See, also, Pitner v. State, 37 Tex. Cr. R. 268, 39 S. W. 662; Henderson v. State, 2 Tex. App. 88; Dent v. State, 43 Tex. Cr. R. 126, 65 S. W. 627; Southern v. State, 34 Tex. Cr. R. 144, 29 S. W. 780, 53 Am. St. Rep. 702; Hyroop v. State, 79 Tex. Cr. R. 150, 179 S. W. 878.

The motion for rehearing will be overruled, but the judgment and sentence will be so amended and corrected as to apply the conviction alone to the count for the unlawful transportation of intoxicating liquor. 
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