Bessett v. State, (No. 3821.)

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: Prendergast
• Citation: 180 S.W. 249
• Decision Date: 17 November 1915
• Docket Number: (No. 3821.)
• Parties: BESSETT v. STATE.

180 S.W. 249 BESSETT
v.
STATE. (No. 3821.) Court of Criminal Appeals of Texas. November 17, 1915.

Appeal from District Court, Wichita County; E. W. Nicholson, Judge.

Ernest Bessett was convicted of theft from the person, and he appeals. Affirmed.

Bernard Martin, of Wichita Falls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

This is an appeal from a conviction of theft from the person, with the lowest penalty assessed.

There is no statement of facts. The question to be passed upon is raised by a bill of exceptions. It shows substantially that appellant filed no plea seeking a suspended sentence; that, after all the evidence, charge of the court, and the argument of the attorneys for both sides, the jury retired to consider their verdict. They all knew that the court did not submit any charge authorizing them to find anything on the subject of suspending the sentence; that, when they first went out, six were for conviction and six for acquittal, and perhaps later five were for conviction and seven for acquittal. When the jury had thus been hung up for some hours, the question of a suspended sentence was brought up by some of them; and, it seems, after discussing this for a while, they differing as to whether they could do so, agreed, and in a body went before the court in open session and propounded this written query to the judge:

"If we convict the defendant and assess his punishment at confinement in the penitentiary for two years, can we recommend a suspension of the sentence?"

— which was properly signed by the foreman. The court answered in writing on the same piece of paper the word, "No." They then again retired to further consider their verdict. Some of them then argued that they had to decide the question themselves and recommend the sentence, and that, when they returned into open court their verdict, finding appellant guilty, fixing his punishment and recommending suspension of his sentence, the judge would, if he received the verdict, suspend the sentence and, if not, send them back for further consideration. They thereupon returned into open court the following verdict:

"We, the jury, find the defendant guilty as charged by indictment and assess his punishment at confinement in the penitentiary for a term of two years, and we recommend a suspended sentence."

This was properly signed by the foreman as such. The court received the verdict and discharged the jury, then entered up a judgment and sentence, assessing his punishment at confinement in the penitentiary for a term of two years, and disregarded the recommendation of the jury to suspend the sentence. Afterwards, the appellant made a motion for a new trial, attaching the affidavit thereto of three of the jurors, in effect stating that they did not, in fact, believe the appellant guilty beyond a reasonable doubt, but had some doubts of it, and because thereof were unwilling to convict him unless his sentence should be suspended, but that they all voted for guilty, so brought in the verdict and understood it at the time, but would not have done so had they not believed that the court would suspend the sentence. When the motion for a new trial was heard, the court permitted four of these jurors to testify, who undertook by their testimony to thus impeach their verdict. They all testified to the fact of the jury propounding the said question to the judge, and his answer thereto. One of them swore that he knew the court would not suspend the sentence; that, when the judge had answered their query, "No," he knew that settled it. He said it was afterwards argued

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in the jury that it would not hurt to put the recommendation down there. It would not change the verdict at all, because the jury had decided it anyway, and that would not affect the verdict at all; that was agreed on. The court, after hearing all the evidence by the four jurors, attempting to impeach their verdict, denied a new trial, and, in his qualification of the bill, states about the jury coming in a body and propounding the said question to him, and his answer thereto, and further said:

"In view of what took place, it is inconceivable how any juror could have been misled by alleged misrepresentations of other jurors."

The action of the court was correct in every particular. This court, in several decisions, has held that the judge had no power to suspend the sentence without the proper plea being filed prior to beginning the trial, and it was in effect his duty to ignore the recommendation for a suspended sentence unless such plea had been filed before the trial began. Barnett v. State, 170 S. W. 143; Speer v. State, 171 S. W. 201; Roberts v. State, 71 Tex. Cr. R. 77, 158 S. W. 1003.

The latter part of the verdict, recommending the suspension of sentence, was mere surplusage. Perry v. State, 44 Tex. 473; Roberts v. State, 33 Tex. Cr. R. 83, 24 S. W. 895. The court in the judgment and sentence correctly in effect so held and acted.

It has always been held, both by our Supreme Court when it had criminal jurisdiction and this court, that the jury, and none of the jurors, could impeach their verdict, as was attempted to be done by their testimony in this case. In Johnson v. State, 27 Tex. 758, our Supreme Court said:

"No case has yet occurred in this state wherein the courts have tolerated such affidavits * * * to impeach verdicts. If ever admissible, they can only be allowed in an extreme case and under an imperative necessity for the accomplishment of justice."

The rule rests upon the obvious ground that, were it otherwise, few verdicts would escape attack by jurors under influence that would be brought to bear upon them after their discharge...