Southern v. State

• Decision Date: 20 February 1895
• Citation: 29 S.W. 780
• Parties: SOUTHERN v. STATE.
• Court: Texas Court of Criminal Appeals

29 S.W. 780

SOUTHERN v. STATE.

Court of Criminal Appeals of Texas.

February 20, 1895.

Appeal from district court, Grayson county; Don A. Bliss, Judge.

John Southern was convicted of theft, and appeals. Affirmed.

Mann Trice, for the State.

HURT, P. J.

The appellant in the above case was tried in the district court of Grayson county on an indictment in two counts, the first of which charged him with the theft of a watch, of the value of $20, and the second charged him with the theft of the same watch from the person of the owner. The jury trying the case found him guilty, and assessed his punishment at confinement in the penitentiary for a term of five years. There are no assignments of error in the record, and the only question in the bills of exception that requires an answer is the action of the court in receiving and correcting the verdict of the jury.

As stated, the indictment contained two counts, the first charging a general theft of the watch, and the second charged a theft of the watch from the person of the owner. No motion was made requiring an election as to which count the prosecution would proceed upon, and the court charged the jury upon both counts. The jury subsequently returned into court with the following verdict, to wit: "We, the jury, find the defendant guilty as charged in the indictment, and assess his punishment at confinement in the penitentiary for the term of five years." The judge thereupon asked the jury of what offense or on which count they found defendant guilty. They replied, "Of both." The judge then suggested it would be best to indicate which offense or count they found defendant guilty upon, and he then interlined or inserted in the verdict, after the word "guilty," the following words, "theft of property of the value of twenty dollars." And judgment and sentence were accordingly entered up on the first count of the indictment. And on account of this action of the court, the defendant complains, and now seeks to reverse the judgment of the lower court. On the bringing in of the verdict by the jury, if the court was not satisfied with it, unquestionably it would have been the proper practice to have had the jury retire, with a suggestion to indicate by their verdict upon which count they found defendant guilty. That was not done, but does it therefore follow that what was done should cause a reversal of the case? Of course, if the statement of facts did not show a proper conviction of defendant on the first count, a different question would be presented; but the statement of facts in this case justifies a conviction of defendant on the first count of the indictment, and so we look at the case as one of possible injury to the defendant, or in which...