Davidson v. State

• Decision Date: 15 March 1899
• Citation: 50 S.W. 365
• Parties: DAVIDSON et al. v. STATE.
• Court: Texas Court of Criminal Appeals

50 S.W. 365

DAVIDSON et al. v. STATE.

Court of Criminal Appeals of Texas.

March 15, 1899.

On motion for rehearing. Overruled.

For former opinion, see 49 S. W. 372.

L. M. Callaway and R. E. Dodson, for appellants. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

The judgment in this case was affirmed at a former day of this term (49 S. W. 372), and now comes before us on motion for rehearing.

Appellants, in their amended motion for rehearing, state that the verdict of the jury, as written on the indictment, reads as follows: "We, the jury, find the defendants' plea of former conviction untrue, and find them guilty as charged, and assess their punishment at two years' confinement in the state penitentiary. R. H. Hervey, Foreman." Appellants' complaint is: "(1) That the verdict of the jury, and judgment rendered thereon, are void. (2) The judgment prescribing and decreeing appellants' punishment in the trial court is void. (3) Because the verdict upon which it is based is a joint verdict, and does not assess the punishment against the defendants severally, and because, said verdict being invalid and void, the court, in the judgment rendered, decrees that defendants be confined in the penitentiary for two years each; being an attempt to base a several judgment upon a joint verdict, when the only way the void verdict could have been corrected by the court was to set it aside, on the motion of defendants, and grant a new trial of the case." Whatever may have been the rule heretofore in reference to the construction of verdicts of this character, we hold that such a verdict as the one rendered in this case is not now subject to the criticism made to the same by appellants' counsel. As stated by the court in the case of Mootry v. State, 35 Tex. Cr. R. 457, 33 S. W. 877, and 34 S. W. 126, "That is certain which can be made certain." A bare inspection of the verdict in this case shows that the jury intended to assess a punishment of two years' confinement in the penitentiary against each of the appellants. The judgment rendered thereon is in direct response to that verdict. In the Mootry Case, supra, the verdict there rendered was death, upon Mootry and Rolly; but we understand the effect of the decision in that case is to overrule the previous decisions of this court, holding verdicts of a similar kind to the one here under discussion void. A fair construction of the verdict in this case will indicate that the jury intended to inflict upon...