
    Captain Bennett v. The State.
    Where there are two counts in an indictment, charging two degrees of the same offense, and the defendant fails to elect on which he will be" tried, the jury may find him guilty of the degree charged, and the court will not disturb the verdict.
    Appeal from Guadalupe. The case was tried before Hon. John Ireland, one of the district judges.
    The appellant was indicted in two counts, one for playing cards in a public place, the other for playing in a gaming-room attached to a liquor-shop. (Paschal’s Dig., Arts. 2044, 2045, Hotes 640, 641.) The defendant moved to quash, on the ground of this improper joinder, which motion was overruled. The jury found the defendant guilty generally, and assessed his fine at $10, upon which there was judgment, and from this he appealed. The charge of the court took no notice of there being two counts. „
    Ho brief for appellant has been furnished to the Reporter.
    
    
      E. B. Turner, Attorney Cfeneral, for the state.
    — The testimony shows a playing with cards at a house for retailing spirituous liquors. (Paschal’s Dig., Arts. 2044, 2045, Notes 640, 641.)
   Lindsay, J.

—Where there are two counts or charges in an indictment, embracing two different offenses of the same class and the same degree, and there is a verdict of “guilty” found by the jury, they can only assess one penalty against the accused. If two offenses be charged in the indictment, of the same class, but of different degrees, the party accused may make his election upon which he will be tried. Failing to do so, the jury may assess the penalty for either offense, if the evidence in the cause warrant the conviction upon either. This may be regarded as one of the improvements of the code of criminal procedure upon the common-law methods of trial for penal offenses. There is no error in the judgment which needs correction, and it is therefore

Affirmed.  