
    ORTEZ v. STATE.
    (No. 9334.)
    (Court of Criminal Appeals of Texas.
    June 24, 1925.
    Rehearing Denied Oct. 21, 1925.)
    1. Criminal law <@=>970(I)— Motion in arrest for insufficiency of indictment too late, where no motion to quash was made.
    No motion to quash indictment having been made, motion in arrest of judgment for insufficiency of indictment is too late.
    2. Indictment and information <©=>125(31)— Indictment for possessing mash and still and equipment for manufacturing liquor held not duplicitous.
    Indictment for possessing mash and a still, and equipment for manufacturing intoxicating liquor, held not to charge two separate and distinct Offenses in same count.
    3. Criminal law <@=>1184 — Judgment of conviction and sentence for manufacturing reformed to conform to only count submitted charging possession of mash, still, and equipment.
    Where count charging .possession of mash and a still and equipment for manufacturing intoxicating liquor was only one submitted, judgment of conviction and sentence for manufacturing such liquor will be reformed to conform to such count.
    On Motion for Rehearing.
    4. Criminal law <@=>878(5) — Verdict of guilty, foilwing submission of count for possessing equipment only, held not void as also convicting of manufacturing under count not submitted.
    Verdict of “guilty as charged in the indictment,” following form given by court in charge submitting only second count charging possession of equipment for manufacturing intoxicating liquor, held not insufficient to support judgment as finding defendant also guilty of manufacturing as charged in count not submitted; charge being looked to in aid of verdict.
    
      5. Criminal law <©=>1184—Appellate court may reform judgment and sentence to conform to only count of indictment submitted.
    Under Yernon’s Ann. Code Cr. Proe. 1916, art. 938, Court of Criminal Appeals may reform judgment and sentence to conform to only count of indictment submitted by court.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Jose Ortez was convicted of possessing mash and a still and equipment for manufacturing intoxicating liquor, and lie appeals.
    Reformed and affirmed.
    G. W. Lindsey, of Dallas, 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 Kaufman county-for the possession of mash, a still, and equipment for the purpose of manufacturing spirituous, vinous, and intoxicating liquor, and his punishment fixed at one year in the penitentiary.

Appellant filed a motion in arrest of judgment, no motion to quash having been made. The motion came too late. Melley v. State, 93 Tex. Cr. R. 522, 248 S. W. 367. The motion in arrest suggests that the judgment is not legal because the indictment is insufficient, in that it charges' two separate and distinct offenses in one and the same count. The bill of exceptions complaining of the overruling of this motion is the only one appearing in the record. We perceive no merit in the motion. The indictment charged that—

“Jose Ortez, * * * in the county of Kaufman and state of Texas, did then and there unlawfully possess mash and a still and equipment for the purpose of manufacturing spirituous, vinous and intoxicating liquor,” etc.

This apparently charges one transaction, and hence only charges one offense. There is no statement of facts in the record.

We observe that the judgment and sentence recite that appellant is adjudged guilty and sentenced for manufacturing intoxicating liquor. Such carelessness is inexcusable. The court submitted only the second count in the indictment charging the possession of said material. The count charging manufacturing was not submitted. The judgment and sentence will be reformed so as to adjudge and sentence appellant to be guilty of possessing mash, a still, and equipment for manufacturing intoxicating liquor, and as so reformed the judgment will be affirmed.

On Motion for Rehearing.

The indictment contained two counts — one charging the manufacture of intoxicating liquor, and the other possession of equipment for the purpose of manufacturing such liquor. The charge of the court submitted only the second count, and in same the learned trial judge gave the jury forms for verdicts in ease of conviction, acquittal, or suspended sentence. The jury’s verdict was in favor of conviction, and same followed the form given them by the court in such case. In spite of the fact that the court only submitted one count in the indictment and told the jury in the charge that, if they found the accused guilty of the offense submitted, their verdict should be, “We, the jury, find the defendant guilty as charged in the indictment,” etc., appellant now contends that he was found by the jury guilty under both counts, and hence the verdict would not support a judgment. Mr. Branch cites many cases on page 332 of his Annotated P. C. supporting the proposition that the charge may be looked to in aid of a verdict. The exact contention of appellant was before the court in Chappell v. State, 58 Tex. Cr. R. 401, 126 S. W. 274, and there decided adversely to said contention.

We are unable to agree with appellant in his proposition that we are without power to reform the judgment. Article 938, Vernon’s Ann. Code Cr. Proe. 1916, expressly confers such power, and under subdivision 9 of the notes under said article are collated many pertinent authorities.

The motion for rehearing will be overruled. 
      <§=s>For oilier eases see' same topic and KEY-W UMBEil in aii Key-Uumbered Digests and Indexes
     