
    GOULD v. STATE.
    (Court of Criminal Appeals of Texas.
    May 8, 1912.)
    1. Indictment and Information (§ 125) — ’ Joining Distinct Offenses.
    Distinct misdemeanors may, by separate counts, be charged in the same indictment.
    [Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. §§ 334^400; Dec. Dig. § 125.]
    2. Indictment and Information (§ 132)— Election.
    The state may not be required to elect, where, by separate counts, distinct misdemeanors are charged in the same indictment.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 425 — 447, 449-453; Dec. Dig. § 132.]
    3. Criminal Law (§ 889) — Trial—Verdict —Correction.
    Under Code Cr. Proc. 1911, arts. 773, 774, as to having informal verdicts corrected, the court properly has the jury correct a verdict assessing a greater penalty than allowed by law, and, with consent of the jurors, properly inserts the words, “and assesses his penalty at.”
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 2109, 2110, 2112; Dee. Dig. § 889.]
    4. Criminal Law (§ 1137) — Appeal—Invited Error — Instructions.
    Defendant cannot complain of the court’s (Rioting in its charge a clause of a statute; it, in so doing, having merely followed what he requested in a special charge.
    [Ed. Note. — For other cases, see Criminal Law, ^ Cent. Dig. §§ 3007-3010; Dec. Dig. §1137.3=]
    5. Criminal Law (§ 673) — 'Trial—Instructions— Evidence of Former Convictions.
    Where,, for the purpose of increasing the penalty which might be imposed, former convictions of defendant of other violations of the same law were alleged, charging that proofs of such convictions could not be considered in passing on his guilt or innocence of the offense for which he was being tried, but only in fixing the penalty, was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.]
    Davidson, P. J., dissenting.
    Appeal from Dallas County Court, at Law; W. F. Whitehurst, Judge.
    O. F. Gould appeals from a conviction.
    Affirmed.
    Walker & Williams, of Dallas, for appellant. • C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Appellant was convicted for violating the Sunday law in five separate and distinct counts, charging, respectively, a violation of said law on February 26, March 19, March 26, April 2, and April 9, 1911, each of said days being Sunday, and the penalty assessed by the jury was the highest permitted by law, respectively, as follows: For the first of said dates, $100; the second, $50; and each of the other three, $200.

Under each of the said separate counts, there were additional paragraphs, called in the papers “counts,” charging that theretofore appellant had been convicted for similar offenses for a violation of said law, giving the full data in the indictment thereabout. Under the first of the above dates, only one additional violation was proven,; under the second, none; and under the other three, each, two additional similar offenses were proven.

This is a companion case to Nos. 1557 (146 S. W. 179), and 1558 (146 S. W. 172), against the same appellant, decided by this court on March 27, 1912. The main questions that were decided in those cases are also raised in this, and they are the main questions in this. There is no use to state them, nor to discuss them, as the other cases are decisive of those points. However, there are some questions in this case that are not raised in the other cases that are necessary to be decided.

The first of these is that the indictment in this case is invalid, because it charges separate and distinct offenses in the same indictment. This question is nowhere and in no way raised by tbe appellant in either this court or the lower court; but the Assistant Attorney General raises and briefs it for the appellant, not the state, urging that the case must be reversed, because the indictment has the five separate and distinct counts, charging five separate and distinct offenses. ■ We presume that the appellant’s able attorneys did not raise the question in either this or the lower court, because it was too well settled against him.

Mr. Bishop, in his New Criminal Procedure (volume 1, § 452), says: “By the practice everywhere, distinct misdemeanors may be joined in separate counts of one indictment to be followed by one trial for all, and by conviction for each, the same as though all were charged in separate indictments. * * * » Again, in section 458 of the same work, subd. 2, he says: “Commonly in misdemeanors, though not quite without exception, two or more congruous offenses may be charged in different counts, and punished substantially the same as though they were different indictments. In the famous Tweed’s Case [60 N. Y. 559, 19 Am. Rep. 211], the right of such joinder was almost denied; the court deeming it unjust to require a man to answer to more than one offense, which, however, may be set out in different forms in more counts than one, on a single trial. But the doctrine of the English and most American courts is the direct reverse of this, namely, that if a man has been engaged in a course of unlawful conduct resulting in a hundred legally distinct, petty offenses, and the executive officers of the government have determined to exercise their right, not controllable by the judiciary, to bring him to trial for all, it is a piece of sheer oppression to him to compel them to find against him a hundred indictments, and require him to stand his trial a hundred times, instead of answering to all at once. Moreover, on broader views, some deem, the author submits rightly, that the joining in proper cases of distinct misdemeanors in one indictment, their trial at one hearing before the petit jury, and the punishing of each as though on a separate indictment, are essential to the administration of real justice — in some cases as essential as protecting the accused from the overburden of needless trials; in others as saving the courts from being blocked by them, to the utter suspension of public justice. So plain is all this that, by many of the judges, even the authority to compel an election of counts in misdemeanor is denied; while others say that, in practice, it ‘is never done.’ ”

This doctrine has so uniformly been adhered to and, we think, so well established by the uniform decisions of this court that it is useless to discuss it. Hall v. State, 32 Tex. Cr. R. 474, 24 S. W. 407; Dancey v. State, 35 Tex. Cr. R. 615, 34 S. W. 113, 938; Scales v. State, 46 Tex. Cr. R. 301, 81 S. W. 947, 66 L. R. A. 730, 108 Am. St. Rep. 1014; Witherspoon v. State, 39 Tex. Cr. R. 67, 44 S. W. 164, 1096; Waddell v. State, 1 Tex. App. 720; Gage v. State, 9 Tex. App. 259; Alexander v. State, 27 Tex. App. 533, 11 S. W. 628; Weathersby v. State, 1 Tex. App. 643; Wilson v. State, 61 Tex. Cr. R. 628, 136 S. W. 447; Tucker v. State, 145 S. W. 611.

It is also the well-settled law of this state that in misdemeanors the state cannot be required to elect. No election was in any way sought or urged by the appellant in this case. Stebbins v. State, 31 Tex. Cr. R. 294, 20 S. W. 552; Thompson v. State, 32 Tex. Cr. R. 265, 22 S. W. 979; Bradshaw v. State, 32 Tex. Cr. R. 381, 23 S. W. 892; Timon v. State, 34 Tex. Cr. R. 363, 30 S. W. 808; Street v. State, 7 Tex. App. 5; Brown v. State, 38 Tex. Cr. R. 597, 44 S. W. 176; Day v. State, 14 Tex. App. 26.

Another question necessary to be noticed is appellant’s claim, shown by his bill of exceptions to the manner in which the verdict was received by the court. The bill shows that, after the jury had been out considering the ease for some time, they returned into court with a verdict, finding the appellant guilty» on each of the said five separate counts for said several dates, and assessing his penalty in the first two of them at a greater amount than was authorized by the law or the charge of the court, and fixing to the others a less amount than when they brought in the verdict the last time. When this verdict was brought in, the court refused to receive it ds to any of the counts, and sent the jury back to reconsider their verdict; the court calling their attention to the fact that on said first count no greater ■fine could be given than $100, and on the next no greater fine could be given than $50, then saying nothing about any of the other counts. All this was done over defendant’s objections. After the jury retired and again considered their verdict, they returned into court with another verdict, fixing the penalty, respectively, as stated in the statement of the case above. On the first count, called in the verdict, charge, etc., “counts Nos. 1 and 2,” the verdict was as follows: “We, the jury, find the defendant guilty as charged on counts No. 1 and 2, one hundred dollars.” The verdict of each of the other counts was the same as this, except in the second, as stated above, it was $50 and each of the other three $200. The court then called the attention of the jury to the fact that the verdict was still not full enough, and, with their permission, at the time inserted in each these words, “and assess his fine at,” so that the verdict of the jury then was on the one above quoted, “We, the jury, find the defendant guilty as charged on counts No. 1 and 2, and assess his fine at one hundred dollars,” and the court then received the verdict. Clearly there was no error by the court in any of this. The statutes and the decisions, in effect, require the court to have the jury correct its verdict, as was done in this case. Articles . 173 and 774, C. C. P., and cases collated in section 913, p. 582, of White’s C. C. P.

There was no reversible error by the court, in its charge, quoting the last clause of article 199, P. O. (old), because, when he submitted the questions to the jury for finding, it was strictly submitted in accordance with the other part of the statute, and in accordance with the indictment itself and the evidence. Besides, the court, in quoting that part of the statute, merely followed precisely what appellant requested in his special charge No. 7. He certainly cannot complain qf the court doing what he requested should be done.

Neither did the court err in charging in effect that the proof of former convictions of the defendant could not be considered by the jury in passing upon his guilt or innocence of the charge alleged against him in this case, but could only be considered in fixing the penalty. In accordance with the allegations of the indictment, in order to properly fix the penalty the jury could .assess, it became necessary for the state to prove that the appellant had theretofore been convicted of other violations of the same law, as alleged. Section 366, Branch’s Criminal Law.

Notwithstanding the brief of the Assistant Attorney General for the appellant in this case, which he concludes with this language, “It seems to us that this case is subject to but one final conclusion in this court, and that is its reversal,” we are constrained, under our duty, as we see it, to affirm this case.'

DAVIDSON, P. J.

(dissenting). I think this case ought to be reversed. Having writ-tén heretofore, I deem it only necessary to enter my nonconeurrenee.  