30 Tex. Ct. App. 472 | Tex. App. | 1891
Appellants were convicted of burglary.
Omitting all that portion of the judgment preceding the verdict, it reads as follows: “ ‘We, the jury, find the defendants guilty of burglary as charged in the indictment, and assess their punishment at four years in the penitentiary. A. Brownlee, Foreman.’ It is therefore ordered, adjudged, and decreed by the court, that the verdict of the jury be in all things approved and confirmed; that the defendants, Charles Trent and John Hays, are adjudged to be guilty of the offense of burglary, as found by the verdict of the jury aforesaid; and that they be confined in the State penitentiary for the term of four years,” etc.
This is a joint verdict and judgment, and the rule is well settled in this State that such a verdict and- judgment is not valid, and can not be sustained. Medis v. The State, 27 Texas Ct. App., 194, Sterling v. The State, 25 Texas Ct. App., 716; Cunningham v. The State, 26 Texas Ct. App , 83; Flynn v. The State, 8 Texas Ct. App., 398; Ceasar v. The State, ante, 274.
The court charged the jury: “If the evidence before you satisfies your minds beyond a reasonable doubt that in Dallas County, Texas, at any time within five years next before June 8, 1891, the defendants, Trent and Hays, or either of them, did,- at night-time, by force, enter a house occupied by A. Lowenstein, without the consent of A. Lowenstein, and with the fraudulent intent to then and there commit theft,
The court further charged the jury • “If, under the evidence and charge of the court, you find the defendants, or either of them, guilty, and by your verdict assess their punishment at five years confinement, and yon believe from- the evidence that either of the defendants are under the age of 16 years, then you have the discretion, and shall say by your verdict, whether such defendant shall be confined in the State reformatory or in the State penitentiary.” If either of the defendants is not more than 16 years of age, and the punishment assessed be confinement for five years or less, then as to that defendant the judgment and sentence shall be that the said defendant be confined in the house of correction and reformatory. The law, under this state of case, leaves the jury and court no discretion in the matter. Acts 1889, p. 97, sec. 12; Washington v. The State, 28 Texas Ct. App., 411.
The nncontradicted evidence is that the defendant Hays is under 16 years of age. The verdict and judgment should both have ascertained that fact, and it should have been embraced in said verdict and judgment. As to the defendant Trent it was not proper to submit the issue, because there was no evidence as to his age, except that he appeared to be over 17 years of age.
The State relied upon the possession of recently stolen property, coupled with the confessions of defendants as to their guilt of the burglary, to sustain the conviction. Hays sets up and testifies to a purchase of the goods found in his possession. Under this state of case the charge should have submitted the question of purchase as to said defendant. If he purchased the goods, and was not a principal offender, he should not have been convicted of burglary, and the court should have so instructed the jury; or, if there is a reasonable doubt of either of these propositions, the defendant should have been acquitted.
The Assistant Attorney-General confesses error in this case, and we are of opinion that he is correct in said confession.
For the errors mentioned, the judgment is reversed and the cause remanded.
White, P. J., absent.
ON REHEARING.
The court charged the jury: “If, under the evidence and the charge of the court, you find the defendants, or either of them, guilty, and by your verdict you assess their punishment at five years confinement or
In all other respects the former opinion is correct, and for the other errors indicated in the opinion heretofore rendered the judgment is reversed and the cause is remanded.
Reversed and remanded.
Judges all present and concurring.