*1 papers dripping oil candle and the with kerosene candle. The running floor. which over the The wick of the candle showed to was partially lying floor have been burned and a match was paper piled away. The officers testified that there a lot of not far was candle, paper dripping snuff can held the which around the was Appellant kerosene oil. in his hand when the officers came teacup spoon. him him a and a The officers searched and found in hat the lid of a snuff box which fit the one candle was in. In our justify concluding this sufficient to attempted question. lant had to burn the house in reason We see no believing illegal. the search made the officers made explanation arrest, to the officers at the time of of the facts and detailed, testify circumstances above nor did he take the stand and the trial. rehearing
The motion for overruled. will he
Overruled. Horn v. The No. 13790. Dismissed November Reinstated January *2 states the Fowler, Throckmorton, Reynolds A. both of B. F. and Jeff appellant. Davidson, Attorney, Austin,
Lloyd State’s of for the State. arson; Judge. punishment, con- CHRISTIAN, offense —The penitentiary years. finement in the for three transcript appeal,, copied notice find before us the of nothing recognizance. There is to show that these sentence and required Rogers law. minutes as recorded of upon judgment rendered The record contains place judgment jury. can not take the of The sentence judgment final sentence was the rendered the verdict. judgment appeal, the court was which authorized without pronounce sentence. Brown unauthorized to jurisdiction of the case it would If we had judgment of the trial court incumbent us to reverse the because of failure of the record show remand the cause entered, rests was entered. representatives the state to show such fact. appeal, notice of sentence fails to show that Because the record appeal recognizance recorded in the minutes of were days this date in which granted fifteen from is dismissed. perfect the record.
Appeal dismissed. the Commission examined by the Court.
Hawkins, J., absent.
ON REINSTATEMENT OF APPEAL. CHRISTIAN, Judge. appears supplemental transcript from the —It appeal appeal, filed since the dismissal of herein that notice of recognizance duly recorded in sentence the minutes of the trial appeal court. Hence the is reinstated and the case considered merits.
The indictment contained several counts. In the third count it was substance, alleged, that Mrs. D. Horn burned the house of *3 Gilbert, and that Scott before the commission of the said offense wilfully advised, encouraged lant commanded and her to commit said offense, present being he not at the time of its commission. In the fourth charged person grand jurors it a count was to unknown house, appellant, present being and that not at the commission of offense, wfilfully advised, encouraged commanded said unknown person alleged to burn said house. In the ninth count it was D. Mrs. Horn set fire to and burned the house in and that J. before the wilfully prepared commission of the offense kerosene, candles, purpose furnished her etc. assisting for the her offense, appellant in the present execution of the being not at the time the offense was principal committed. The tenth count grand jurors, present to the appellant, unknown and that committed, did, prior commission, at the time the offense was to its persons kerosene, candles, furnish said unknown charge, etc. his In mentioned, court submitted all of the counts but failed to instruct jury to return a verdict jury a reading “We, verdict jury, as follows: defendant, Horn, guilty find the third, fourth, W. ninth and tenth counts of the accomplice offense of arson as an and assess his punishment years penitentiary.” at three in the permission jury court asked change to the verdict. Such permission having granted, appellant’s been objection, over changed the “We, verdict read jury to find the defend Horn,, ant accomplice punish arson as an and assess his years ment at penitentiary.” three informal, When jury’s attention should be called permission to it. With their proper and consent it is judge for the trial proper to correct and reduce it to form. If given, the consent is not jury should be ordered to retire deliberation, appear for further unless it acquittal, the accused in which case an intended for the verdict was pro- P., P., 686, C. C. Article C. discharged. Article C. should be jury of their decision a written declaration “A is a vides: case.” them in the to of the issues submitted a jury a verdict requires to render members of the twelve P. While C. C. felony 5, sec. article Constitution, article with the power an informal verdict correct has the to the trial verdict, juror cannot render jury, not a consent of the he is for felony case, any part it, nor can he substitute can jur3r. illegal returned the court an the verdict of the proper verdict, they agree but he retire the until illegal verdict. substitute his for specifically guilty of the In the case the found pun charge, assessed a them in the court’s four counts submitted to minimum. In Modica v. Texas ishment in excess of the rehearing, Judge W., 1049, on motion Lattimore, courts speaking “It is the for the said: every upholding verdicts of indulge reasonable intendment juries. applied general doing cases verdicts this we have in some provided appear, submitted, some more than one one count fixed be such as that it can be concluded punish minimum intended to in but one case. verdicts General punishments applied good others have also been counts in cases where upholds defective, know of no case in this state specifically finding guilty under more doctrine that a verdict felony case, punishment greater than than one count which affixed a minimum, upheld.” could be *4 Rep., 71, W., State, S. In the case of v. 101 Texas Crim. 274 Jones driving 566, the indictment in the first count public intoxicated, and in the second automobile on road while public degree driving road count with an automobile on a while liquor. both intoxicating under the The court submitted influence of count, they on each counts minimum. This court reversed assessed above the question the case statement: believe the statute with this “While we violation, felomq only describing means of embraces one two supra discussed and believe the authorities cover herein principles not have herein announced. The should cover jur3' in both counts nor have received such instructed the to find verdict.” support following v. holding cases were cited: Williams 628; State, 100
State, Rep., 50, Venturi v. 100 Texas 271 S. W. Crim. 211; State, Rep., 152, W., v. 97 Texas Texas Crim. Nelson 272 S. supra; 1046; State, Banks v. Rep., 210, W., Crim. 261 S. Modica v. 377; State, 117, W., State, Rep., Rambo v. Crim. 246 S. 93 Texas quote further from Módica 827. and numerous supra, statutes of our state v. “The courts to decline to it the of the trial decisions of this court make verdicts, jury be told informal insufficient and direct receive charge plural trials, submitted to them in the counts are count, they by any, if verdict of which must find their separate argued guilty. in certain cases counts be found If it be property charging from different owners indictments theft of the same permissible practice readily agree, also to or commendable —we proposition phases legal might mind this develop; transaction, pleaded proof might as it same so to meet the many question injury might lawyers beyond arise they attempt uphold hypothesis that cases if we their action necessary legal procedure the court understood in matters which charge.” failed to tell in his them about expressed Giving holding effect to the of this trial in his action. learned was not warranted penalty be said that the minimum if the would have exceeded only they understood that could convict Gold Garrison (Texas App.), (2d) stone v. State 25 S. W. remanded. is reversed and the cause remanded.
Reversed and exam- of the Commission of ined the Court.
Arthur Stolleis No. 13654. November Delivered Rehearing January 28, 1931. Denied Rehearing February 4, 1931. Second Denied