
    SMITH v. STATE.
    (No. 6401.)
    (Court of Criminal Appeals of Texas.
    Nov. 16, 1921.)
    1. Criminal law <&wkey;678(l) — Where indictment charges several offenses and evidence develops distinct transactions, state should be required to elect.
    Where an indictment in separate counts charges several felonies and the evidence develops distinct transactions, the state on accused’s request should be required to elect upon which count or transaction it will .seek a conviction.
    2. Criminal law <&wkey;992 — Judgment cannot be entered except in accord with verdict.
    Under Code Or, Proc. 1911, art. 853, specifying the requisites of the judgment in a felony case, the court is without authority to enter judgments except in accord with the verdict.
    3. Criminal law <&wkey;II84 — Judgment cannot be reformed to coincide with verdict when it would convict defendant of distinct felonies.
    Where defendant was charged in separate counts with the unlawful possession of intoxicating liquor, the unlawful manufacture thereof and unlawful possession of equipment for making such liquor, and found guilty as charged, after a request to require the state to elect had been refused, and the court entered judgment convicting him of manufacturing and possessing intoxicating liquors, the Court of Criminal Appeals has no power under Code Cr. Proc. 1911, art. 938, to reform the judgment to coincide with the verdict, as to do so would make it convict defendant of three distinct offenses and do violence to his right to an election.
    4. Criminal law <&wkey;>984 — Judgment convicting defendant of more than one offense held unauthorized.
    Under an indictment charging defendant in separate counts with the unlawful possession of intoxicating liquor, the unlawful manufacture of such liquor and the unlawful possession of equipment for making it, neither the trial court nor the Court of Criminal Appeals can render judgment convicting defendant of more than one offense.
    5. Indictment and information &wkey;>!32(7) — In prosecution for possessing, manufacturing, and possessing equipment for making, intoxicating liquors, state should have been required to elect.
    - Where an indictment in separate counts charged defendant with the unlawful possession and the unlawful manufacture of intoxicating liquor and the unlawful possession of equipment for making such liquor, the state should have been required to elect, as the indictment charged distinct felonies.
    6. Intoxicating liquors &wkey;>l39 — Possession of liquors must amount to actual personal care, control, and management.
    Under the statute making the possession of intoxicating liquor an offense, the proof must show that defendant had the actual personal care, control, and management of the liquor, though such possession may be had through a coprineipal or an innocent agent.
    7. Intoxicating liquors <&wkey;239(I) — Instruction as to possession should indicate that possession must be personal and not constructive.
    On a trial for the unlawful possession of intoxicating liquor, an instruction that “possess” meant that the party possessing or having possession must have such liquor or equipment in his possession, that is, under his management, supervision, ,or control, should have been so amended that the jury would understand that the possession related to a personal and not to a constructive control, where defendant excepted and submitted a corrected special charge.
    Appeal from District Court, Franklin County; R. T. Wilkinson, Judge.
    Sherman Smith was convicted of manufacturing and possessing intoxicating liquors, and he appeals.
    Reversed and remanded.
    Connor & Ramey, of Sulphur Springs, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Appellant was indicted in separate counts for the unlawful possession of intoxicating liquor, the unlawful manufacture of intoxicating liquor, and for the unlawful possession of equipment for making intoxicating liquor. The court instructed the jury upon each of these counts, and, upon the verdict of the jury, appellant was convicted of unlawfully possessing intoxicating liquor and of unlawfully manufacturing intoxicating liquor.

Appellant'made a timely motion to require an election between the counts, and complains of the refusal of the court to grant this motion. When an indictment, in separate counts, charges several felonies and the evidence adduced develops distinct transactions, the state should, at the request of the accused, he required to elect upon which count or transaction it will seek a conviction. McKenzie v. State, 32 Tex. Cr. R. 569, 25 S. W. 426, 40 Am. St. Rep. 795. There are many apparent exceptions to this rule; for example, whore the same transaction is charged in a number of different counts; where the same transaction or offense is charged in different counts, each alleging a different mode or means of doing the same act. Moore v. State, 37 Tex. Cr. R. 552, 40 S. W. 287. Other instances in which an election is not required are revealed by the authorities, but upon the present occasion we deem a discussion of them unnecessary.

The verdict ran thus:

“We, the jury, find the defendant guilty as charged and assess his punishment at confinement in the state penitentiary for a term of two (2) years.”

He was charged with three separate offenses. Todd v. State, 229 S. W. 515. Upon this verdict the court entered a judgment of conviction for the offenses of manufacturing and possessing intoxicating liquors. The court is without authority to enter judgments save in accord with the verdict. Code of Crim. Proc. art. 853; Vernon’s Crim. Statutes, vol. 2, p. 848. While this court, in a proper case, has power to reform the judgment to coincide with the verdict (Code of Crim. Proc. art. 938), to do so, in the instant case, would make the judgment convict the appellant of three distinct offenses and thereby do violence to his rights to an election, which was by him duly asserted and by the trial court denied. Moreover, neither the trial court nor this one could convict appellant of more than one offense under the indictment.

The unlawful possession of intoxicating liquors is a felony when possessed for sale, and the unlawful manufacture of intoxicating liquors is a felony. The two do not necessarily constitute the same act. The possession may be entirely independent of the manufacture, and the possession of equipment may likewise be entirely independent of the possession of intoxicating liquor or the manufacture thereof. It seems to us that the case is one calling for an election.

The court, in its charge, defines “possess” thus:

“By the term ‘possess,’ as used in this charge, is meant that the party possessing, or having possession, must have such liquor or equipment in his possession, that is, under his management, supervision, or control.”

Exception was urged against this charge and a corrective special charge submitted. It is urged that the definition of “possess” is broader than the legislative intent, and was calculated to convey to the jury the idea that no personal possession was required, but that constructive possession would suffice. Since the passage of the statute upon which the prosecution is founded, but few occasions have arisen calling for an interpretation of the legislative intent in making it unlawful to “possess” intoxicating liquor. In Thomas v. State, 232 S. W. 826, the trial court construed the language to mean “the exercise of actual control, care, and management.” No more appropriate definition was suggested by special charge, and this court held the definition not obnoxious to any objection that was made to it. Possession and ownership are not entirely synonymous. The possession of intoxicating liquor contemplated by the statute in question would seem to lie more intimately personal than that which relates to the possession of a special owner of property in prosecution for theft In those prosecutions the special owner is defined as one having actual control, care, and management of the property. See Branch’s Ann. Texas Penal Code, § 2434. TVo think that in drawing the statute it was intended that to convict one charged with the unlawful possession of intoxicating liquor proof should be made that his relation to it was personal, that he had the actual personal care, control, and management of it. Of course such possession through a coprin-."ipal or through an innocent agent would come within the purview of the statute. In (lie instant case, in our judgment, the court, in response to the objections made to the definition contained in his charge, should have so amended it that the jury would understand therefrom that the possession related to a personal and not to a constructive control.

For the reasons stated, the judgment is reversed, and the cause remanded. 
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