Essery v. State

• Citation: 163 S.W. 17
• Parties: ESSERY v. STATE.
• Decision Date: 17 December 1913
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 17

163 S.W. 17

ESSERY v. STATE.

Court of Criminal Appeals of Texas.

December 17, 1913.

Rehearing Denied January 14, 1914.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

Grover Essery was convicted of murder, and he appeals. Affirmed.

Will S. Payne, of Snyder, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

The indictment in this case charges that appellant did, with malice aforethought, kill L. T. Ammann. No statement of facts accompanies this record, and there is no question that can or should be reviewed in the absence of a statement of facts, except the one in which appellant complains of the action of the court in sustaining the verdict as rendered and in permitting the jury to amend their verdict. This presents a serious question, and one to which we have given much thought since occupying this high position. No one, under any circumstances, should be deprived of any right given him by the laws of this state, and, if any provision of our Code of Criminal Procedure has been overlooked or disregarded, if, in the remotest degree, it could have been hurtful or harmful to the person on trial, the verdict should be set aside. He has a right to be tried in accordance with the rules and forms of law, and, if this sort of a trial is not accorded him, he has a right to complain, and to this complaint we will always give an attentive ear. In one ground of the motion we find the following complaint: "The court erred in permitting the jury, after they had been discharged by the court on Thursday evening at 7:45 o'clock, and after they had rendered a verdict in the case, to again have them resummoned to reform their verdict; that said summons and said reformation of said verdict was on Saturday, the 21st day of June, 1913, after they had mixed and mingled with the outside world they were again resummoned and came into open court and reformed their verdict; that said verdict as it was originally rendered was void, in that they failed to state what they found the defendant guilty of, in that they omitted the words `murder in the first degree'; that by reason of said words being omitted in the verdict as it was originally rendered, rendered said verdict void for the reason that they had been discharged by the court, and for the further reason that they were not permitted to talk with any one before the rendition of the original verdict, and after the returning of same into open court, and after their discharge by the court, and their mixing and mingling with the outer world, and some of them having discussed the case; that said reformation of said verdict is void and was error on the part of the court, and was error on the part of the district attorney in requesting said reformation in said verdict to be made."

Of course, after the court had accepted the verdict and discharged the jury on the 19th, it had no authority or power to reconvene this jury two days later, and permit them to amend their verdict. This was erroneous, and the amendment of the verdict gave no force nor validity thereto, other than the verdict was originally entitled to as first rendered and accepted by the court. This is true both in civil and criminal cases (Cookville Coal & Lumber Co. v. Evans [Civ. App.] 135 S. W. 750). So the verdict, if sustained, must be held sufficient as originally rendered.

It then read: "We, the jury, find the defendant guilty as charged in the indictment, and assess his punishment at imprisonment for life." Article 1141, P. C., describes murder in the first and second degrees; and article 1142 requires that the jury shall state in their verdict whether they find the person on trial guilty of murder in the first or the second degree. We have cases that hold it was error for the jury to fail to so find, even though the facts only authorized a charge on murder in the first degree. See Johnson v. State, 30 Tex. App. 419, 17 S. W. 1070, 28 Am. St. Rep. 930, and Brooks v. State, 42 Tex. Cr. R. 347, 60 S. W. 53. But neither of these cases are reversed solely on that ground. In the case of Johnson, supra, the court committed an error in its charge, and in the Brooks Case, supra, the charge was also held to be erroneous. In many cases, which will be found collated in section 842 of Branch's Crim. Law, it will be seen that this court has held a verdict erroneous which fails to state the degree of murder of which the person on trial has been adjudged guilty. But in none of them has the case been reversed because of this error alone. When murder was divided into degrees, it was proper, where more than one degree of murder was submitted to the jury, to require the jury to state of which degree they found the person on trial guilty, for if a new trial was granted it was material to a defendant to know of which grade of homicide he had been found guilty, for, if only of murder in the second degree, the death penalty could not be inflicted on the second trial. Therefore, when murder was divided into two degrees, and both degrees were submitted to the jury, it was a valuable right for the defendant to have determined of what degree of murder he had been adjudged guilty. However, in this case the court submitted to the jury only murder in the first degree, and they were not and could not be authorized to return a verdict of guilty of murder of any other degree than murder in the first degree. Had the court submitted both murder in the first and second degrees, there would be merit in appellant's contention, but, as the court submitted only murder in the first degree to the jury, their verdict could not be interpreted nor understood as finding appellant guilty of any other degree than that submitted to them, and, while, perhaps, it was erroneous to have accepted the verdict, which did not specifically find that appellant was guilty of murder in the first degree and so state, yet, when we take the indictment, the charge of the court, and the verdict as first returned, it is not only a necessary, but the only, conclusion that could be arrived at—the jury did find appellant guilty of murder in the first degree. This was the only issue submitted to them, and, while the verdict may be said to be erroneous, it is not such error as calls or will necessitate a reversal of the case. Any other construction of article 1142 of the Penal Code would be a strained construction, and never intended by the Legislature. After dividing murder in two degrees, it was intended that when the two degrees were submitted to the jury, then the jury should be required to find of what degree he had been adjudged guilty. But when the Code said that murder committed in a certain way was murder of the first degree, the law so makes it, and a jury by their verdict could not find otherwise.

We have often heard discussed technicalities of the law. The writer is of the opinion that, while some of the language used in some of the opinions may be said to be technical, yet there are really no technicalities in the law. A matter is either erroneous or not, and, if erroneous, and it could have resulted in hurt or harm to the person on trial, the case should be reversed. But, even though the matter complained of may be said to be erroneous, yet, if by no construction the error, if error there be, could have resulted in hurt or harm, then it is wrong to reverse the case. In this case no error was committed in the trial of the case as shown by this record; neither was there error in the charge of the court, and the only matter complained of is that the verdict in plain language did not state of what degree of murder the appellant was found guilty, when only one degree of murder was submitted to them for their consideration, and under this record we must presume that the facts showed, if appellant was guilty of any offense, it was by the Code declared to be murder in the first degree. Under such circumstances, it seems to us the height of absurdity to say we cannot determine by the indictment, the charge, and the verdict of what degree of murder appellant was found guilty, and, although we may be said to have some cases that incline to that view of the law, yet we cannot get our assent to follow such a technical construction of the law. We do not think the articles of the Code referred to calls for or will bear such construction, but when the law says murder committed under given circumstances is murder in the first degree, and the court instructs the jury that if it was not committed in that way by the appellant to acquit, then to say that the verdict of guilty could be other than for murder in the first degree seems to us an absurdity.

The judgment is affirmed.

DAVIDSON, J. (dissenting).

The indictment in ordinary form charges appellant with murder. Murder is an offense consisting of degrees by statutory enactment. It embraces murder in the first and second degrees, manslaughter, and negligent homicide, and may include other inferior offenses. This conviction occurred before the 1st of July, and was necessarily tried under the law before the change in the definition of murder went into effect, which occurred on July 1st. On June 19th the jury returned the following verdict: "We the jury find the defendant guilty as charged in the indictment, and assess his punishment at imprisonment for life." On the 21st of June the jury was resummoned, resworn, and under instructions of the judge made the verdict read so as to find appellant guilty of murder in the first degree. Exception was duly reserved and perpetuated in a bill of exceptions. Judge Harper, in the majority opinion, holds that this could not be done. In this he is correct both as to civil and criminal cases. I do not purpose to go into that phase of the case, because, when the court receives a verdict and discharges a jury, that terminates that phase of the trial. The verdict could not thereafter be amended or changed, but such as was returned by the jury would form...