Gaither v. State

• Citation: 1 S.W. 456
• Parties: GAITHER v. STATE.
• Decision Date: 19 June 1886
• Court: Court of Appeals of Texas

1 S.W. 456

GAITHER v. STATE.

Court of Appeals of Texas.

June 19, 1886.

Appeal from Falls county.

The opinion states the facts.

WHITE, P. J.

Appellant was convicted upon an indictment containing two counts: the first for theft of cattle, and the second for receiving stolen property, knowing it to have been stolen.

We here copy in full the judgment of the court, as follows: "On this tenth day February, A. D. 1886, this cause coming on to be heard, came the state of Texas by her district attorney, and announced ready for trial. Thereupon came a jury of good and lawful men, to-wit, L. W. Kelly and eleven others, who were selected, impaneled, and sworn according to law; and, the indictment being read, the defendant, to the charge therein of the theft of a yearling neat cattle, pleaded not guilty, and the jury, after hearing the evidence, argument of counsel, and charge of the court, retired, in charge of the proper officer, to consider of their verdict, and after due deliberation returned into open court, the defendant being present, the following verdict, to-wit: `We, the jury, find the defendant guilty as charged in the second count of the indictment, and assess his punishment at two years' confinement in the penitentiary. L. W. KELLY, Foreman.' Wherefore it is considered by the court that defendant is guilty [of theft of a yearling neat cattle] as charged in the indictment, and as found by the verdict of the jury. It is therefore ordered, adjudged, and decreed by the court that the defendant, Thomas Gaither, be condemned to imprisonment in the state penitentiary for a period of two years, in accordance with the verdict of the jury and judgment of the court, and that he be remanded to the custody of the sheriff of Falls county, and by him to be safely confined in the common jail of Falls county to await further orders of this court." The sentence of the court followed the terms of this judgment, and appellant was condemned to imprisonment in the penitentiary for the offense of a "theft of a yearling."

It is manifest that the judgment and sentence are not supported by the verdict. The verdict found the defendant guilty to the second count in the indictment, which was a charge for receiving stolen property knowing it to have been stolen. The judgment and sentence were for the theft of an animal, as charged in the first count of the indictment. It is now well settled in this state that theft and receiving stolen property, knowing it to have been stolen, are two separate, distinct, and specific offenses, and that under an indictment for theft a party cannot be convicted of receiving stolen property, and vice versa. Brown v. State, 15 Tex. App. 581, and authorities cited. One of the requisites of a final judgment, as declared by our statutes, is that the said judgment must show, in a case of conviction, that it is considered by the court that the defendant is adjudged to be guilty of the offense as found by the jury; or, in case of acquittal, that the defendant be discharged. Code Crim. Proc. art. 791, subd. 9. This mandate of the law has not been complied with in the judgment rendered in this case. In a felony case the trial must be by jury, and it is the verdict of the jury which gives validity and effect to the judgment as to the character of the crime which has been committed; and, where the jury have determined the crime upon the special issues fairly presented to them by the court, it is well settled that the court...