1. INDICTMENT AND INFORMATION.
Under statute providing that defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged, whether a felony or misdemeanor, person accused of felonious transportation of intoxicating liquor could properly be convicted of unlawfully possessing whisky after its delivery, since offense of possessing is necessarily included in the charge of transporting intoxicating liquor (Code 1932, section 11758).
2. CRIMINAL LAW.
Where minutes of trial court showed that person convicted of unlawful possession of whisky was also adjudged infamous, order adjudging accused infamous was unauthorized and should be stricken as surplusage (Code 1932, section 11758).
FROM MAURY.
MR. JUSTICE COOK delivered the opinion of the Court.
Plaintiff in error, referred to as defendant, was charged by indictment with felonious transportation of intoxicating liquor. He was arraigned and tried upon that charge, but it developed in course of the trial that a third person, unaided by defendant, delivered the whisky and stored it at the place where it was found by officers. The trial judge charged the jury that possession of intoxicating liquor was included in the indictment for transporting. The jury accordingly found and assessed a fine of $100. The appeal is from the judgment upon the verdict of the jury and raises a single question of whether or not the defendant put upon trial under an indictment for felonious transportation can be convicted of unlawfully possessing whisky after its delivery.
The statute, Code, section 11758, provides that the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged, whether a felony or misdemeanor. The statute is plain and unambiguous and authorizes conviction for the offense of possessing, which is necessarily included in the charge of transporting intoxicating liquor.
By the entry on the minutes of the trial court it appears that the defendant was adjudged infamous. Such an order was unauthorized and should be stricken as surplusage. With that modification the judgment of the trial court is affirmed.