Jones v. State

• Decision Date: 11 November 1908
• Citation: 113 S.W. 761
• Parties: JONES v. STATE.
• Court: Texas Court of Criminal Appeals

113 S.W. 761

JONES v. STATE.

Court of Criminal Appeals of Texas.

November 11, 1908.

Appeal from Criminal District Court, Dallas County; A. S. Baskett, Special Judge.

Jim Jones was convicted of murder in the first degree, and he appeals. Affirmed.

F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

A report of the former appeal of this case will be found in 51 Tex. Cr. R. 472, 101 S. W. 993. The punishment is the same, as shown by this record, as in the former appeal. Appellant reserved three bills of exceptions.

Contention is made in the first bill of exceptions that the court erred in overruling his challenge to the array in the special venire. The proceedings with reference to the selection of this jury were had in accordance with the act of the Thirtieth Legislature (Laws 1907, p. 269, c. 139). Practically the same contentions are made here as in Bob Smith's Case (recently decided by this court) 113 S. W. 289. On the authority of the opinion in that case, appellant's challenge to the array is not well taken.

The jury agreed upon and returned the following verdict: "We, the jury, find the defendant, Jim Jones, guilty of murder in the first degree as charged in the indictment, and assess his punishment at 99 years in the state penitentiary. W. L. Arant, Foreman." The court on his own motion instructed the jury that their verdict did not conform to the charge of the court, there being no such punishment, as found by them, for murder in the first degree, and directed their retirement and further consideration of the verdict. Appellant urged several objections to this: (1) That the court should have received the verdict as returned; (2) that he had no authority to further instruct the jury; (3) that he had no authority to retire the jury to further consider of their verdict, as they had already returned one; (4) that the verdict as returned was a legal finding of murder in the second degree, and was an acquittal of murder in the first degree; (5) that the said verdict constituted former jeopardy as against any subsequent or further verdict. It is further recited in the bill that a short time after the jury had retired, as directed by the court, they again returned into court with the following verdict: "We, the jury, find the defendant, Jim Jones, guilty of murder in the first degree as charged in the indictment, and assess his punishment at life imprisonment in the state penitentiary. W. L. Arant, Foreman." Subsequently the bill shows that appellant filed a motion in arrest of judgment as follows: (1) That the verdict of the jury originally and as first returned by the jury should be made the basis of the judgment in this cause; (2) that the last verdict of the jury returned assesses against the defendant a punishment unknown to the law. This was overruled by the court.

The action of the court was in compliance with the statute and decisions in this state. Article 753, Code Cr. Proc. 1895, reads as follows: "If the jury find a verdict which is informal, their attention shall be called to it, and with their consent the verdict may, under the direction of the court, be reduced to the proper form." Article 754 provides: "If the jury refuse to have the verdict altered, they shall again retire to their room to deliberate, unless it manifestly appear that the verdict is intended as an acquittal, and in that case the judgment shall be rendered accordingly, discharging the defendant." So it will be seen by the reading of these statutes that express authority is conferred upon the court to call the attention of the jury to any informality in the...