35 S.W.2d 145 | Tex. Crim. App. | 1931
Lead Opinion
The offense is arson; the punishment, confinement in the penitentiary for three years.
We find copied in the transcript before us the notice of appeal, sentence and recognizance. There is nothing to show that these are recorded in the minutes of the court, as required by law. Rogers v. State, 85 Tex.Crim. Rep.,
The record contains no judgment rendered upon' the verdict of the jury. The sentence can not take the place of the judgment of the court rendered upon the verdict. The sentence was the final judgment which authorized the appeal, but without a judgment the court was unauthorized to pronounce sentence. Brown v. State, 88 Tex.Crim. Rep.,
Because the record fails to show that notice of appeal, sentence and recognizance were recorded in the minutes of the court, the appeal is dismissed. Appellant is granted fifteen days from this date in which to perfect the record.
Appeal dismissed. *24
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Hawkins, J., absent.
Addendum
It appears from the supplemental transcript filed since the dismissal of the appeal herein that notice of appeal, sentence and recognizance were duly recorded in the minutes of the trial court. Hence the appeal is reinstated and the case considered on its merits.
The indictment contained several counts. In the third count it was alleged, in substance, that Mrs. J. D. Horn burned the house of J. Scott Gilbert, and that before the commission of the said offense appellant wilfully advised, commanded and encouraged her to commit said offense, he not being present at the time of its commission. In the fourth count it was charged that a person unknown to the grand jurors burned the house, and that appellant, not being present at the commission of the offense, wilfully advised, commanded and encouraged said unknown person to burn said house. In the ninth count it was alleged that Mrs. J. D. Horn set fire to and burned the house in question and that before the commission of the offense appellant wilfully prepared and furnished her kerosene, candles, etc. for the purpose of assisting her in the execution of the offense, appellant not being present at the time the offense was committed. The tenth count charged that the principal was unknown to the grand jurors, and that appellant, not being present at the time the offense was committed, did, prior to its commission, furnish said unknown persons kerosene, candles, etc. In his charge, the court submitted all of the counts mentioned, but failed to instruct the jury to return a verdict upon but one count.
The jury returned a verdict reading as follows: "We, the jury, find the defendant, J. W. Horn, guilty on the third, fourth, ninth and tenth counts of the offense of arson as an accomplice and assess his punishment at three years in the penitentiary."
The court asked permission of the jury to change the verdict. Such permission having been granted, the court, over appellant's objection, changed the verdict to read as follows: "We, the jury find the defendant J. W. Horn, guilty of arson as an accomplice and assess his punishment at three years in the penitentiary."
When the verdict is informal, the jury's attention should be called to it. With their permission and consent it is proper for the trial judge to correct and reduce it to proper form. If the consent is not given, the jury should be ordered to retire for further deliberation, unless it appear *25 that the verdict was intended for an acquittal, in which case the accused should be discharged. Article 696, C. C. P., Article 686, C. C. P., provides: "A verdict is a written declaration by a jury of their decision of the issues submitted to them in the case."
It requires twelve members of the jury to render a verdict in a felony case. Constitution, article 5, sec. 13; article 687, C. C. P. While the trial judge has the power to correct an informal verdict with the consent of the jury, he is not a juror and cannot render a verdict, or any part of it, in a felony case, nor can he substitute his judgment for the verdict of the jury. If an illegal verdict is returned the court can retire the jury until they agree upon a proper verdict, but he cannot substitute his judgment for an illegal verdict.
In the present case the jury specifically found appellant guilty of the four counts submitted to them in the court's charge, and assessed a punishment in excess of the minimum. In Modica v. State, 94 Tex.Crim. Rep.,
In the case of Jones v. State, 101 Tex.Crim. Rep.,
In support of the holding the following cases were cited: Williams v. State, 100 Tex.Crim. Rep.,
Giving effect to the holding of this court, the opinion is expressed that the learned trial judge was not warranted in his action. It cannot be said that the penalty would have exceeded the minimum if the jury had understood that they could only convict appellant upon one count. Garrison v. State,
The judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.