Opinion
[170 TEXCRIM 16] Mays & Jacobs, by J. C. Jacobs, Corsicana, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
WOODLEY, Judge.
On a former day of this term the judgment of conviction herein was affirmed and appellant's first and second motions for rehearing were overruled.
Our attention has now been called to what appears to be a fatal defect in the jury's verdict. Our prior opinions are therefore withdrawn and the following substituted.
[170 TEXCRIM 17] The third count of the indictment alleged the unlawful possession of ethyl morphine, a narcotic drug.
The verdict of the jury which the trial court received and upon which the judgment of conviction was based recites that the jury found appellant guilty and assessed his punishment 'at confinement in the State Penitentiary for Five (5).'
The verdict assessed no definite punishment and for that reason is fatally defective. Cooper v. State, 136 Tex.Cr.R. 498, 126 S.W.2d 974; McCarty v. State, Tex.Cr.App., 317 S.W.2d 748; Bumpass v. State, 160 Tex.Cr.R. 423, 271 S.W.2d 953.
The authorities cited are controlling and require that the conviction be set aside.
The order affirming the conviction is set aside and the judgment is now reversed and the cause remanded.