139 S.W.2d 589 | Tex. Crim. App. | 1940
Lead Opinion
The offense is assault to murder with malice; the punishment assessed is confinement in the State penitentiary for a term of three years.
The record shows that on the day in question there was a seaman’s strike in progress in Port Arthur, Texas. Appellant, who was a strike breaker, came to the docks in a car driven by his mother. As their car passed by or through, a line of strikers, appellant without any cause or provocation,
The first complaint urged is that the verdict is not sufficient, in that it fails to state whether the jury found him guilty of an assault to murder with or without malice. The verdict reads as follows: “We the jury find the defendant guilty of assault to murder as charged in the indictment, and assess his punishment at confinement in the state penitentiary for a term of three years.”
The indictment contained but one count charging appellant with the offense of an assault to murder with malice aforethought. When the jury found him guilty as charged in the indictment, they found him guilty of an assault with intent to murder with malice. The jury made the charging part of the indictment a part of their verdict as much so as if they had incorporated it therein. In support of what we have said we refer to the case of Lewis v. State, 217 S. W., 695. The case of Pleasant v. State, 128 S. W. (2d), 813 (814) is distinguishable. In that case, the verdict did not contain the words “as charged in the indictment.”
There are two bills of exceptions in the record. Both of these bills complain of the action of the trial court in overruling appellant’s motion for a new trial and they will be considered together. It is made to appear from these bills and the testimony which was adduced upon the hearing of the motion for a new trial that after the jury had been out deliberating for some time, they encountered some difficulty in agreeing upon the meaning of the term “during good behavior” which the court had used in his charge relative to appellant’s plea for a suspension of sentence. They filed back into court and asked the trial court to define said term. Appellant was present but his counsel was absent. The trial judge made an attempt to secure the presence of appellant’s counsel, but was unable to do so. He then charged the jury orally that in order
The three preceding articles have reference to communications by the jury with the court in asking for further instructions or in having witnesses recalled for the purpose of repeating their testimony on a disputed point, etc.
The authorities hold that in most cases such additional instructions must be requested and given in open court and in the presence of the defendant. Such matter can be raised for the first time on motion for new trial. See Schafer v. State, 40 S. W. (2d), 147 and authorities cited. See also Vaughn v. State, 102 Tex. Crim. Rep., 207, 277 S. W., 646 where it is stated that:
“* * * These provisions of the Statute were intended to give effect to the provisions of the Bill of Rights guaranteeing a public trial.”
But said statutes have not been construed as mandatory where appellant’s counsel voluntarily absents himself from the courtroom and the defendant is present when the additional instructions are asked. The court, after making a reasonable effort to secure counsel’s presence, may proceed to give such instructions as are deemed necessary. In Garcia v. State, 96 Tex. Crim. Rep., 324 (326) appellant’s counsel was absent and was called by the sheriff, but after waiting some time the court gave a special charge on circumstantial evidence in his absence. Such proceedings were held not to be error. In Har
We do not think that under the circumstances appearing from the record, the matter here complained of is of such a nature as could be brought up for the first time on motion for a new trial. In this case appellant’s counsel knew about the matter before the verdict was reached, but made no objection and made no request that the jury be brought back and the instructions given in writing. If counsel, in such cases, knowing the law, voluntarily absent themselves from court, and the court makes a reasonable effort to procure their attendance but fails, we do not think it necessary for the court to refuse to receive or consider the jury’s request presented in a proper manner, or indefinitely hold the jury awaiting the return of counsel. To hold otherwise would put an unreasonable burden on the court and jury.
It is noted that the trial court failed to make application of the Indeterminate Sentence Law as provided in Art. 775 C. C. P. Sentence will be amended to direct appellant’s confinement in the penitentiary for not less than two nor more than three years and as thus reformed the judgment is affirmed.
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.
Rehearing
After carefully re-examining the record in the light of appellant’s motion for rehearing, we are constrained to adhere to the conclusion expressed in the original opinion.
The motion for rehearing is overruled.
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.