
    HILL v. STATE.
    (No. 11788.)
    Court of Criminal Appeals of Texas.
    May 16, 1928.
    1. Criminal law <&wkey;726 — Where remarks of state’s counsel were appropriate response to argument of accused’s counsel, rule of invited argument controlled.
    Where remarks of state’s counsel in liquor prosecution were an appropriate response to argument of accused’s counsel, rule of invited argument controlled.
    2. Criminal law <&wkey;878(l) — One cannot be convicted of two felonies on same indictment.
    One cannot be convicted of two felonies on same indictment.
    3. Criminal law <&wkey;798i/2 — Where prosecution charges distinct felonies in separate counts, jury should be told there can he no conviction but for one of offenses charged* and that verdict should designate offense intended.
    Where prosecution charges distinct felonies in separate counts in same indictment, if there be evidence supporting each of counts, jury should, in specific terms, be told that there can be conviction'but for one of offenses charged, and that in their verdict there should be designation of offense intended.
    4. Criminal law i&wkey;>889 — Where verdict violates rule against conviction for two offenses upon same indictment, correction should1 be required before jury is discharged.
    Where verdict is violative of rule against conviction for two offenses upon same indictment, correction should be required before jury is discharged.
    5. Criminal law <&wkey;l 184 — Court of Criminal Appeals cannot reform judgment where in one verdict upon one indictment accused is convicted of two distinct felonies (Code Cr. Proc. 1925, art. 847).
    While it is competent for Court of Criminal Appeals, under Code Gr. Proc. 1925, art. 847, to reform a judgment, this power does not extend to case in which in one verdict upon one indictment accused is convicted of two distinct felonies.
    6. Intoxicating liquors <&wkey;239(I) — Instruction regarding possessing intoxicating liquor held misleading as inducing belief that mere possession was offense (Pen. Code 1925, art. 666).
    In prosecution for possession of liquor for purpose of sale, in violation of Pen. Code 1925, art. 666, instruction that, if jury found from evidence that defendant possessed liquor capable of producing intoxication, jury should find defendant guilty as charged in indictment held misleading as inducing belief that mere possession of intoxicating liquor was an offense.
    Appeal from District Court, Young County ; E. G. Thornton, Judge. •
    Haskell Hill was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
    Reversed and remanded.
    
      L. C. Counts, of Olney, for appellant.
    A. A. Dawson, State’s Atty.,of Austin, for the State.
   MORROW, P. J.

The offense is the possession of intoxicating liquor for the purpose of sale; punishment fixed at confinement in the penitentiary for one year.

While traveling upon the highway, the sheriff observed an automobile parked near the road and saw the appellant and another near the ear. After passing them the sheriff stopped, and, while turning his car, the appellant ran. He was pursued and apprehended soon after he had dropped upon the ground three pints of whisky. Another pint of whis-ky was found by the sheriff at the car in possession of the appellant’s companion.

The bills of exceptions complaining of the remarks of state’s counsel reveal no error. Especially is that the case when the language used is viewed in the light of the explanation of the bill showing that the remarks were an appropriate response to the argument of the appellant’s counsel. The rule of invited argument would control. See Baker v. State, 4 Tex. App. 229, and other cases cited in Branch’s Ann. Tex. P. C. § 363.

There were two counts in the indictment, and there was evidence supporting each of them. Both were submitted to the jury, and the verdict reads thus:

“We, the jury, find the defendant guilty in both counts and assess a penalty of one year confinement in the state penitentiary in each count.”

Under the law of this state, one cannot be convicted of two felonies on a single indictment. This announcement has been made by the courts of last resort in this and other states upon numerous occasions. It was so declared in Howard’s Case, 8 Tex. App. 477, and also held upon an exhaustive discussion and copious citation of authorities in Crawford’s Case, 31 Tex. Cr. R. 51, 19 S. W. 766. More recent cases to the same point are Moore v. State, 83 Tex. Cr. R. 302, 203 S. W. 51; Knott v. State, 93 Tex. Cr. R. 239, 247 S. W. 520; Banks v. State, 93 Tex. Cr. R. 117, 246 S. W. 377. Authority is given and the duty imposed upon the trial court to reject an informal verdict and to either correct it or require the jury to do so. Where the prosecution charges distinct felonies in separate counts in the same indictment, if there be evidence supporting each of the counts, the jury should, in specific terms, be made to understand that there can be a conviction for but one of the offenses charged and that in their verdict there should be a designation of the offenses intended. See Banks v. State, supra; also, Smith v. State, 90 Tex. Cr. R. 273, 234 S. W. 893; McKenzie v. State, 32 Tex. Cr. R. 568, 25 S. W. 426, 40 Am. St. Rep. 795; Todd v. State, 89 Tex. Cr. R. 99, 229 S. W. 515. Such practice would tend to avoid the difficulties apparent upon the present record. If, however, that practice is not pursued, the verdict in such cases should be scrutinized and if, as in the present case, it is violative of the rule against a conviction for two offenses upon the same indictment, correction should be required before the jury is discharged. It is competent for this court under article 847, C. C. P. 1925, to reform a judgment, but the power does not extend to an instance like the present in which, in one verdict upon one indictment, the accused is convicted of two distinct felonies. See Knott V. State, supra, and authorities there collated. In view of another trial, attention is directed to the fourth paragraph of the court’s charge, which reads thus:

“If you find and believe from the evidence beyond a reasonable doubt that the defendant, in Young county, Tex., on or about the 2d day of December, 1927, possessed spirituous, vinous, or malt liquor capable of producing intoxication, then you will find the defendant guilty as charged in the first count in the indictment and so say by your verdict.”

In this paragraph of the charge, which was to guide the jury in finding upon the possessing count of the indictment, the jury may have been misled into’the belief that the mere possession of intoxicating liquor was an offense. The offense denounced and charged in the indictment is not the mere possession of such liquor, but its possession for the purpose of sale. See P. 0. 1925, art. 666. Doubtless the omission from the paragraph of the term “for the purpose of sale” was an oversight. The offense was properly defined in paragraph 1 of the charge, but, in paragraph 3, the law making the possession of more than one quart of intoxicating liquor prima facie evidence of guilt was made the subject of an instruction.

For the error pointed out, the judgment is reversed and the cause remanded. 
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