Opinion
No. 12361.
Delivered January 9, 1929. Rehearing denied February 27, 1929.
1. — Possessing a Still — Judgment and Sentence — Reformed.
The judgment and sentence in this case will be reformed so as to condemn the appellant to confinement in the penitentiary for a period of not less than one nor more than three years.
ON REHEARING.2. — Same — Continued.
Where a general verdict is returned under a proper charge and in preparing the judgment the offense was improperly described, the sentence and judgment will be reformed and corrected so as to bring them in accord with the charge of the court and the verdict, that is to condemn the appellant to confinement in the penitentiary for a term of not less than one nor more than three years for the offense of possessing a still, mash and equipment for the manufacture of intoxicating liquors. See Art. 847, C. C. P., 1925, Fance v. State, No. 12362, this day decided.
Appeal from the District Court of Montgomery County. Tried below before the Hon. J. L. Manry, Judge.
Appeal from a conviction for possessing a still, mash, and equipment for manufacturing intoxicating liquor; penalty three years in the penitentiary.
The opinion states the case.
McCall Crawford of Conroe, for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
The offense is the unlawful possession of a still for the manufacture of intoxicating liquor; punishment fixed by the jury at confinement in the penitentiary for a period of three years.
The judgment and sentence will be reformed so as to condemn the appellant to confinement in the penitentiary for a period of not less than one nor more than three years.
There is an absence of statement of facts and bills of exceptions. No fundamental error or irregularity in the trial is disclosed.
The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.
It was charged in the indictment that the appellant did then and there unlawfully possess and have in his possession a still, mash and equipment for the purpose of manufacturing spirituous, vinous and malt liquors and intoxicating liquor capable of producing intoxication. In that form the offense was submitted to the jury and a general verdict was returned. In preparing the judgment, the offense was described as possessing a still, mash, etc. It also failed to give the appellant the benefit of the indeterminate sentence. The sentence followed the judgment. The sentence and judgment will be reformed and corrected so as to bring them in accord with the charge of the court and the verdict, that is, to condemn the appellant to confinement in the penitentiary for a period of not less than one nor more than three years for the offense of possessing a still, mash and equipment for the manufacture of intoxicating liquor. With such corrections the motion for rehearing is overruled by virtue of Art. 847, C. C. P. 1925. See France v. State, No. 12362, this day decided.
Overruled.