
    MEADORS v. STATE.
    (No. 8935.)
    (Court of Criminal Appeals of Texas.
    May 20, 1925.
    Rehearing Denied Oct. 14, 1925.)
    1. Criminal law <&wkey;925(l) — Trial court heid not to have abused discretion in denying-new trial for juror’s conduct.
    In liquor prosecution, trial court held not to have abused his discretion in denying new trial for alleged misconduct of juror in expressing himself to effect that defendant was guilty, and in discussing a former trial which resulted in a hung jury.
    2. Criminal law <&wkey;l 15,8(3) — Trial court’s decision on ipotion for new trial for juror’s mis-' conduct not reversible unless clearly wrong.
    Where there is a controversy as to a juror’s misconduct raised on a motion for new trial, and trial court hears the testimony, his decision is only reversible when testimony is all one way or decision is clearly wrong.
    3. Criminal law t&wkey;878(2) — Application of jury’s general verdict to count in indictment charging unlawful possession of liquor held not erroneous.
    In prosecution for unlawfully selling intoxicating liquor, and for unlawfully possessing in'toxicating liquor for sale, application of jury’s general verdict of guilty to latter count held! not erroneous.
    <g=»For otbár oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      4. Criminal law &wkey;>l 192 — Trial court held authorized to enter judgment nunc pro tunc at a subsequent term of court.
    In liquor prosecution, trial court held authorized, in view of Code Or. Proc. 1911, art. 859, to enter judgment and sentence nunc pro tunc at a subsequent'term of court, in accordance with dismissal of former appeal, because record was insufficient to show final judgment or that proper sentence was ever passed on defendant.
    On Motion for Rehearing.
    5. Indictment and information &wkey;>l32(5) — State not required to elect under different counts of indictment, where evidence sufficient to support both averments.
    State held not required to elect, under indictment charging sale of intoxicating liquor and possession of intoxicating liquor for sale, where there was evidence supporting both aver-ments.
    6. Criminal law <&wkey;l 173(3) — Failure to tell jury that, in event of conviction, they should designate count upon which they found against accused, will not be reversible error.
    In prosecution for sale of intoxicating liquor and possession of intoxicating liquor for sale, court’s failure to tell jury that, in event of conviction, they should designate count upon which they found against accused, will not be reversible error, where there is evidence in support of both counts and penalty assessed is the lowest.
    7. Intoxicating liquors &wkey;U73 — Defendant's sale of whisky held not to render him less guilty of possession for sale.
    In liquor prosecution, that defendant sold whisky which he possessed for sale did not render him less guilty of possession for purpose of sale. i
    «S^For other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Robertson County; W. C. Davis, Judge.
    George Meadors was convicted of unlawfully possessing intoxicating liquor for purpose of sale, and lie appeals.
    Affirmed.
    Henry A. Bush, of Franklin, for appellant.
    Tom Garrard, State’s A tty., and Grover O. Morris, Asst. State’s Atty., both, of Austin, .for the State.
   BAKER, J.

The appellant was charged by indictment in the district court of Robertson county in two counts — the first unlawfully selling intoxicating liquor to William Henderson, and the second with unlawfully possessing, intoxicating liquor for the purpose of sale — and was convicted and his punishment assessed at one year in the penitentiary. The court charged the jury on both counts of the indictment, and the jury returned a verdict as follows: >

“We, the jury, find the defendant guilty and' assess his punishment at one year’s confinement in the state penitentiary.”

Upon this verdict, the court entered judgment and sentenced the defendant on the count charging unlawful possession for the purpose of sale.

The appellant raises many questions of complaint to the action of the trial court in this case, as set out in bills of exception 1 to 10, inclusive. We have carefully examined said bills as presented and the complaints made therein, and we find no errors in the most of same, and for that reason will only discuss such bills as we think demand the attention of this court. , i

Bill No. 10 raises the question as to the action of ’the court in refusing a new trial, and the alleged misconduct of one of the jurors, wherein it is alleged that said juror had expressed himself to the effect that the defendant was guilty before he was selected as a juror in this case, and in discussing a former trial which resulted in a hung jury. This issue was heard before the trial judge on motion for a new trial, and said juror positively denied having made any such statements to the defendant’s witness, and said witness for the defendant, to whom the the statements were alleged to have been made, in testifying before the court, was not so positive that said juror made the statements, but in effect testified that was his best recollection of what he stated. The learned trial judge heard the testimony adduced both by said juror and said witness, which covered all the testimony on this phase of the case, and ruled against the contention of the appellant. When there is a controversy raised as to this character and kind on motion for a new trial, and the trial court hears the testimony, his decision is not reversible under such circumstances, and is only reversible when the testimony is all one way or when the decision is clearly wrong. In Branch’s Ann. P. G. § 565, p. 288, it is stated:

“When it is sought to show on the hearing of a motion for a new trial that a juror before the trial had expressed an opinion of defendant’s guilt or had made statements which showed a prejudice against defendant, the decision of the trial court on that issue will be sustained by the appellate court unless clearly wrong if the evidence bearing thereon was conflicting and was sufficient, if believed, to justify the action of the trial judge” — citing Magee v. State, 14 Tex. App. 377; Shaw v. State, 32 Tex. Cr. R. 155, 22 S. W. 588, and many other eases.

Bill No. 11 complains of the action of the trial court in applying the general verdict of the jury to the count in the indictment charging unlawful possession of whisky. This court has repeatedly held against appellant on this' contention. Coursey v. State, 97 Tex. Cr. R. 47, 260 S. W. 851; Rambo v. State, 96 Tex. Cr. R. 387, 258 S. W. 827.

Bill No. 13 complains of the action of the trial court in entering judgment and sentence nunc pro tunc at a subsequent term of the court. This case on a former appeal was dismissed on January 30, 1924, by this court, on account of the record being insufficient to show final judgment, or that proper sentence was ever passed on the defendant. Meadors v. State, 97 Tex. Cr. R. 93, 260 S. W. 580. And it appears from the record of the trial court on this appeal that the trial court, in keeping with said opinion of dismissal, entered the judgment nunc pro tunc from which the present appeal is taken, and, to the action of the trial court in mitering such judgment nunc pro tunc, the appellant complains and contends that said court was without authority to enter same. This contention we think is without merit. Article 859, Code of Criminal Procedure, authorizes such action, and this court, in the cases of Rios v. State, 79 Tex. Cr. R. 89, 183 S. W. 152, Bennett v. State, 80 Tex. Cr. R. 652, 194 S. W. 145, 148, held that said actions of the trial court in such matters were proper.

We are of the opinion that the record in this case discloses that appellant has had a fair and impartial trial,, and the judgment of the trial court is accordingly affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

The indictment charged the sale of intoxicating liquor to William Henderson, and also charged the possession of intoxicating liquor for the purpose of sale. There was evidence supporting both averments. It is the appellant’s contention that, there being but one transaction, the court should have submitted but one of the counts. We understand the rule to be as stated by Mr. Branch in his Ann. Tex. P. C. § 444, as follows:

“If different counts charging the same character of offense are inserted in the indictment to prevent a variance and there is evidence supporting each, the state is not required to elect between such counts.”
“If only one transaction or act is charged, and different counts are contained in the indictment to meet the possible phases that the testimony may assume, the state will not be required to elect between such counts.” ■

These propositions are supported by numerous authorities collated by Mr. Branch. This principle was announced in the early case of Gonzales v. State, 12 Tex. App. 663, and has since been followed without departure. See Hooper v. State, 94 Tex. Cr. R. 279, 250 S. W. 694. It would have been appropriate for the court to tell the jury that, in the event of a conviction, they should designate the count upon which they found against the accused. There being evidence,however, in support of both counts, and the penalty assessed being the lowest, the failure to give such an instruction would not be reversible error. Hooper v. State, supra. The position taken by the appellant that there was not evidence supporting the second count is not tenable. It is conceived that the appellant’s action in selling and delivering the whisky to Henderson was a transaction upon which he might have been convicted for the possession of whisky for the purpose of sale. See Smith v. State, 90 Tex. Cr. R. 274, 234 S. W. 893. If there was but one transaction, it is possible that there might have been but one conviction, but the fact that he sold the whisky which he possessed for sale did not render him less guilty of 'the possession for the purpose of sale. Colter v. State, 94 Tex. Cr. R. 96, 252 S. W. 168.

The motion is overruled.  