Guest v. State

• Decision Date: 21 January 1888
• Parties: GUEST v. STATE.
• Court: Texas Court of Appeals

7 S.W. 242

GUEST v. STATE.

Court of Appeals of Texas.

January 21, 1888.

Appeal from district court, Red River county; D. H. SCOTT, Judge.

Defendant was convicted under an indictment for theft, on April 15, 1887, of four head of cattle belonging to J. R. Johnson, in Red River county, and fined $225. The court refused to grant a new trial, and defendant appeals. The facts in this case are substantially the same as those in a former trial of the defendant for the same offense, and are stated at length in the former appeal, reported in Guest v. State, 5 S. W. Rep. 840.

Sims & Wright, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

Conceding that, under an indictment charging theft in the usual form, a defendant may be convicted of the theft defined by article 749 Pen. Code, or of the misdemeanor defined by article 767, Pen. Code, and that the court did not err in so instructing the jury, still we must hold that the verdict should with reasonable certainty show of which offense — the felony or the misdemeanor — the defendant was found guilty. In this case the verdict reads: "We, the jury, find the defendant guilty as charged in the bill of indictment, and assess his punishment at a fine of two hundred and twenty-five dollars." The punishment assessed is applicable to the felony defined by article 749, and also to the misdemeanor defined by article 767. We cannot, therefore, determine from the punishment assessed whether the defendant was found guilty of the felony or of the misdemeanor. The trial court upon this verdict adjudged the defendant guilty of the felony, — that is, of the theft of cattle, — but we are unable to perceive from the record the authority for so adjudging. The verdict finds him guilty as "charged in the bill of indictment." He is charged in the bill of indictment, not only with the theft of the cattle, but with the misdemeanor of willfully driving the cattle from their accustomed range without the consent of the owner. Both these offenses were, by the charge of the court, submitted to the jury. It is impossible to determine from the record to which of said offenses the verdict was intended to apply. If the verdict had found the defendant guilty of theft as charged in the indictment, it would have been sufficient, although the punishment assessed was a fine, as such punishment is authorized by the theft defined by article 767. Foster v. State, 21 Tex. App. 80. But when the indictment, as in this case, charges an offense which includes other offenses, and all the offenses covered by the indictment are submitted to the jury by the charge of the court, a general verdict of guilty, assessing a penalty applicable to either one of two offenses, is uncertain and will not support a judgment. "When a verdict is so defective and uncertain that the court cannot know for what offense to pass judgment, it should be set aside." Slaughter v. State, 24 Tex. 410; Alston v. State, 41 Tex. 39; Senterfit v. State, Id. 186; Buster v. State, 42 Tex. 315. We can find no precedent which holds such a verdict as the one rendered in this case to be sufficient to authorize a judgment. It is a matter of vital importance to the defendant whether the jury found him guilty of a felony or a misdemeanor. If he has been convicted of a felony, he is thereby deprived of important civil rights, which deprivation would not result from a conviction for a misdemeanor. It was for the jury, and not for the court, to declare whether he was guilty of a felony or a misdemeanor. The jury failed to specify his crime, or even to intimate that it was a felony, and yet the court has adjudged him guilty of felony. We are clearly of the opinion that the verdict does not authorize the judgment rendered and entered, or any other judgment against the defendant. The verdict should not have been received by the court, but, having been received, it should have been set aside, and a new trial should have been granted the defendant.

We are of the opinion that the evidence, as presented to us on this appeal, fairly presents the issue of a voluntary return of the alleged stolen cattle by the defendant into the actual possession of the owner within a reasonable time, and before any prosecution had been commenced against defendant for the taking of said cattle. We think this issue should have been submitted to the jury under instructions from the court applicable to the facts in evidence. While the special charge upon this issue, which was requested by defendant's counsel, was not as full and definite as it should have been, it was correct in the abstract, and sufficient to call the court's attention to the issue, and to the law governing such issue....