Pritchard v. State

• Citation: 35 S.W.2d 717
• Decision Date: 11 February 1931
• Docket Number: No. 13937.,13937.
• Parties: PRITCHARD v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 717

35 S.W.2d 717

PRITCHARD v. STATE.

No. 13937.

Court of Criminal Appeals of Texas.

February 11, 1931.

Commissioners' Decision.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

C. F. Pritchard was convicted of embezzlement of property over $50, and he appeals.

Reversed and remanded.

E. O. Northcutt, of Amarillo, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CALHOUN, J.

Conviction for embezzlement of property over $50; punishment, two years in the penitentiary.

The record in this case shows that upon the trial of this cause the appellant did not file any plea for suspended sentence, provided for under article 776, C. C. P. There was no issue as to a suspended sentence submitted in the court's charge to the jury. The jury returned into court the following verdict:

"We, the jury, find the defendant, C. F. Pritchard, guilty of embezzlement in an amount of over $50.00 value, as charged in the indictment, and we assess his punishment at confinement in the penitentiary for two (2) years.

                                  "W. P. Martin, Foreman
                

"We, the Jury, recommend a suspended sentence.

                            "W. P. Martin, Foreman."
                

Said verdict was received by the court as written, and judgment entered thereon by the trial court, fixing appellant's punishment at confinement in the penitentiary at two years, as assessed by the jury, but entirely ignoring that portion of the verdict which recommended a suspended sentence. This fairly raises the question as to whether a trial judge may receive a verdict which as part thereof, as in this case, recommended a suspended sentence, and then enter a judgment which ignores such recommendation.

In the case of Bessett v. State, 78 Tex. Cr. R. 110, 180 S. W. 249, 250, the majority of this court, speaking through Judge Prendergast, held in effect that, when no plea for suspended sentence was filed before trial and the jury nevertheless returned a verdict of guilty recommending a suspended sentence, the action of the court in entering up a judgment and sentence upon such verdict, disregarding the recommendation to suspend, was proper, since a judge has no power to suspend a sentence unless proper plea is filed before trial. In that case, Judge Davidson, filed a dissenting opinion, holding that: "If it be held that the defendant could not get the benefit of the suspended sentence without his sworn application, then the jury returned a verdict which they were not authorized to do, and the court did not have any authority to receive it. An illegal verdict is a paradox. If illegal, it is not to be received or enforced. If he did not like the verdict and thought it was illegal, he should have sent the jury back and required them to find a proper verdict."

He calls attention to C. C. P. (1911), art. 773 (now article 696), and, continuing, says: "If the verdict is illegal, the court cannot legalize it by receiving it."

In the case of Champion v. State, 113 Tex. Cr. R. 172, 19 S.W.(2d) 63, 65, which was a trial for forgery, the jury returned a verdict of guilty and assessed the punishment at two years in the penitentiary and recommended a suspended sentence. The trial court refused to receive the verdict because the issue of suspended sentence was not submitted to the jury and with...