Jacobs v. State

• Decision Date: 19 December 1900
• Citation: 59 S.W. 1111
• Parties: JACOBS v. STATE.
• Court: Texas Court of Criminal Appeals

59 S.W. 1111

JACOBS v. STATE.

Court of Criminal Appeals of Texas.

December 19, 1900.

Appeal from district court, Harris county; A. C. Allen, Judge.

Sol Jacobs was convicted under an indictment for forgery and for uttering a forged instrument, and from the judgment he appeals. Reversed.

Wm. Sorley and Brockman & Kahn, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted under an indictment charging forgery and uttering a forged instrument. The charge of the court submitted both counts, and the verdict of the jury was as follows: "We, the jury, find defendant guilty, and assess his punishment in the state penitentiary for two years. [Signed] Geo. C. Davis, Foreman." The judgment recites the court adjudged defendant "guilty of the offense as found by the jury." The final sentence of the court states: "It is the order of the court that defendant, Sol Jacobs, who has been adjudged guilty of the offense as found by the jury, whose punishment has been assessed by the verdict of the jury at confinement in the penitentiary for two years," etc. Thus, it appears from the verdict, judgment, and sentence there is nothing to indicate of what appellant was found guilty. Article 549a, Pen. Code, provides: "A conviction for any of the offenses mentioned in articles 530, 542, and 544 of this Code shall be a bar to any other prosecution under said articles based upon the same transaction or same forged instrument of writing, provided that one or more of said several offenses may be charged by separate counts in the same bill of indictment and prosecuted together to final judgment, without election by the state as to which it relies upon for conviction; and provided, further, the judgment of conviction shall specify which offense or under which count defendant is found guilty, and shall assess but one penalty, not exceeding the greatest punishment fixed by law to the highest grade of offense of which defendant is convicted." From this article it appears that the letter and spirit of this statute has been violated by the trial court. It is not necessary, as contended by appellant, that the jury should say in their verdict of what offense appellant is convicted, but the statute makes it imperative upon the trial court, in entering the judgment of conviction, to specify of which offense or under which count defendant is found guilty. In this connection, appellant refers to Carr v. State, 36 Tex. Cr. R. 3, 34 S. W. 949. We there held that, where an indictment for forgery contains two counts, one for forgery and the other for uttering or passing the forged instrument, an election between the counts cannot be required; and where both counts are submitted, and the evidence supports both, a general verdict can be entered upon either one of the counts. Appellant further insists that this contravenes the above-quoted statute. We do not agree with this, but think the decision referred to is in line and in harmony with the statute, since the statute does not inhibit the jury from returning a general verdict where there is a count both for forgery and uttering a forged instrument, but the statute makes it the duty of the court, in entering judgment and sentence, to recite of which offense defendant is adjudged guilty. Nor do we think this statute invades the province of the jury, where they return a general verdict of so many years in the penitentiary. The penalty not exceeding the greatest punishment fixed by law to the highest grade of offense of which defendant is convicted, it is a mere legal form for the court to designate to which offense in the indictment the punishment must be assessed. Carr v. State, 36 Tex. Cr. R. 3, 34 S. W. 949, which appellant in his brief relies upon, was decided under the old statute, prior to the passage of the present one, and has no application to the question at issue. The question here involved was decided adversely to appellant's contention in Love-joy v. State, 40 Tex. Cr. R. 89, 48 S. W. 520. There we held that the acts of the court in the premises were upheld by the common-law precedents. Our attention at that time was not called to the statute quoted above, but certainly the statute amply authorizes such action on the part of the court.

The judgment of the court does not declare defendant guilty of any particular offense. This should have been done, and the sentence should have followed the judgment.

Motion to quash the indictment was made on the ground that it alleges an impossible date. The indictment itself does not bear out this contention. The date is there alleged as follows: "The 19th day of October, in the year of our Lord one thousand eight hundred and ninety-eight." The word "eight" is written over the word "two," which word had been obliterated and blotted out. We do not think the court erred in overruling this motion.

Appellant's eighth assignment is that the court erred in permitting E. C. Smith, over his objections, to testify that he went to the South Texas National Bank, where he negotiated the alleged forged note, and that he told said bank that the name of L. M. Rich upon said note was a forgery. This conversation was clearly violative of the rules of evidence, in that it was a conversation res inter alios acta, out of the presence of appellant, without his knowledge, and the declaration of the prosecuting witness that in no event or contingency could bind appellant. It is a well-settled rule of law that conversations between third parties in no...