Hays v. State

• Decision Date: 18 November 1891
• Citation: 17 S.W. 1063
• Parties: HAYS <I>et al.</I> v. STATE.
• Court: Texas Court of Appeals

17 S.W. 1063

HAYS et al. v. STATE.

Court of Appeals of Texas.

November 18, 1891.

Appeal from district court, Dallas county: R. E. BURKE, Judge.

Indictment against John Hays and Charles Trent for burglary. Defendants appeal from a judgment of conviction. Reversed.

Acts 1889, p. 97, § 12, provides: "When upon the trial and conviction of any person in this state of a felony it is found by the verdict of the jury that the defendant is not more than 16 years of age, and the verdict of conviction is for confinement for five years or less, the judgment and sentence of the court shall be that the defendant be confined in the house of correction and reformatory, instead of the penitentiary, for the term of his sentence, and that such defendant be conveyed to the house of correction and reformatory by the proper authority, and there confined for the period of his sentence; and for such service such officer shall be paid the same fees he would be allowed for carrying such convicts to the penitentiary: providing, the jury convicting shall say in their verdict whether the convict shall be sent to the reformatory or the penitentiary."

Russell, Cooper & Lemmon, for appellants. Richard H. Harrison, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellants were convicted of burglary. Omitting all that portion of the judgment preceding the verdict, it reads as follows: "`We, the jury, find the defendants guilty of burglary as charged in the indictment, and assess their punishment at 4 years in the penitentiary. A BROWNLEE, Foreman.' It is therefore ordered, adjudged, and decreed by the court that the verdict of the jury be in all things approved and confirmed; that the defendants, Chas. Trent and John Hays, are adjudged to be guilty of the offense of burglary, as found by the verdict of the jury aforesaid; and that they be confined in the state penitentiary for the term of four years," etc. This is a joint verdict and judgment, and the rule is well settled in this state that such a verdict and judgment is not valid, and cannot be sustained. Medis v. State, 27 Tex. App. 194, 11 S. W. Rep. 112; Matlock v. State, 25 Tex. App. 716, 8 S. W. Rep. 818; Cunningham v. State, 26 Tex. App. 83, 9 S. W. Rep. 62; Flynn v. State, 8 Tex. App. 398; Ceasar v. State, (just decided,) 17 S. W. Rep. 258. The court charged the jury: "If the evidence before you satisfies your minds beyond a reasonable doubt that in Dallas county, Texas, at any time within five years before June 8, 1891, the defendants Trent and Hays, or either of them, did, at night-time, by force, enter a house occupied by A. Lowenstein, without the consent of Lowenstein, and with the fraudulent intent to then and there commit theft, then you should find them guilty of burglary as charged, and assess their punishment at confinement in the penitentiary for a term of not less than two years nor more than 12 years." This charge is clearly erroneous, in that it authorizes the conviction of both defendants upon proof of the guilt of either. The court further charged the jury: "If, under the evidence and charge of the court, you find the defendants, or either of them, guilty, and by your verdict assess their punishment at five years' confinement, and you believe from the evidence that either of the defendants are under the age of 16 years, then you have the discretion and shall say by your verdict, whether such defendant shall be confined in the state reformatory or in the state penitentiary." If either of the defendants is not more than 16 years of age, and the punishment assessed be confinement for 5 years or less, then as to that defendant the judgment and sentence shall be that the said defendant be confined in the house of correction and reformatory. The law, under this state of case, leaves the jury and c...