Bonds v. StateBonds v. State
- Reporters:
- , ,
- Before:
- Lattimore
— Appellant pleaded guilty in the District Court of “Gonzales County to the offense of theft of a hog аnd received a punishment of two years in the penitentiary.
In his motions for new trial and in arrest of judgment appellant complains of the form оf the jury’s verdict,’ and also of the fact that the jury did nоt consider his plea for suspended sentence, and that the foreman of the jury did not submit his apрlication for such sentence to the jury.
The vеrdict of the jury is as follows: “We the jury find the defendant guilty as charged in the indictment and places his sentеnce at two years in the State penitentiаry. L. H. Hinton, Foreman. ’ ’
It is urged.that the use of the words “place his sentence” renders such verdict invalid. Wе think the only question involved under our decisions is — Can thе finding of the jury be reasonably ascertained frоm what they have said in their verdict, — and there seems no great room for doubt in our minds as to what this jury meant. True the judge pronounces the sentencе, but this must accord with the term *395 of years or punishment” fixеd or placed in the first instance by the jury. In a very truе sense the length- of the sentence is first plaсed by the jury. In Sec. 646, Branch’s Ann. P. C., will be found many cases cited supporting the general proposition herein announced.
Reverting to the other сontention of appellant, we know of no rule of procedure in this State which requires thе foreman of a petit jury to proceеd in any given way in the disposal of the issues before such jury. In the instant case it seems undisputed that in the jury rоom the only question of the suspension of the sеntence of appellant was freely disсussed and that no one suggested that he be given a suspended sentence, or asked for a vоte on that question. The legal effect of thе verdict agreed to by all the jury, and the fact that such verdict received the sanction of аll the jurors, and that they were bound to know that they wеre not giving to appellant a suspended sеntence, would seem a sufficient discussion of this question. This court has held that the failure to mention the matter of suspended sentence in the verdiсt is tantamount to a denial thereof by the jury. Potter v. State, 71 Texas Crim. Rep., 209, 159 S. W. Rep., 846; Dawson v. State, 70 Texas Crim. Rep., 8, 161 S. W. Rep., 469; Cook v. State, 73 Texas Crim. Rep., 548, 165 S. W. Rep., 573; Johnson v. State, 74 Texas Crim. Rep., 627, 169 S. W. Rep., 1151. In Conatser v. State, 75 Texas Crim. Rep., 91, 170 S. W. Rep., 314, this court held that the failure of the verdict to dispose of the question as to recоmmending a suspended sentence, such verdict being silent on the subject, was not error available on motion for new trial. It would seem from the reasoning in that case that the accused should have raised the question immediately upon the return of the verdict, if he desired a finding on said issue.
Finding no error in the record the judgment is affirmed.
Affirmed.