Champion v. State , 113 Tex. Crim. 172 ( 1929 )

Conviction for forgery; punishment, two years in the penitentiary.

It is contended that this case should be reversed because of the fact that the trial judge changed the verdict at the time it was brought in, and struck out from same a recommendation put there by the jury, for a suspended sentence. We cannot agree to a reversal for such reason.

While there appears on file an application for suspended sentence, there is not a word in the record showing that it was ever brought to the attention of the trial court, or presented to the jury, or supported by any testimony. The judgment ordinarily recites the pleas. In this case it states that the indictment was read and the defendant pleaded not guilty. No reference whatever is made to the presentation of a plea for suspended sentence. There is in the record no statement of facts, and no bill of exceptions, and no exceptions taken to the charge of the court, and no special charges asked. The trial court did not submit the issue of a suspended sentence in his charge. In the absence of some exception to the charge, or some complaint of the action of the court, supported and shown to be well founded, the uniform holding of this court is in favor of the correctness and regularity of the action of the courts below. Unless we overturn all of our holdings we are (under such circumstances) compelled to assume that the action of the trial court in not submitting such issue was correct. When the jury brought in their verdict, and when same was read containing a recommendation for a suspended sentence, the trial court then informed the jury that he could not receive it in that form, that he had not submitted to them the issue of suspension of sentence, and in their presence and while together he reformed the verdict and struck out of same the said recommendation, then read or had read to the jury the verdict finding the accused guilty and assessing his punishment at two years in the penitentiary, after which he asked the jury if such verdict so read was theirs. None of them objected but all by silence assented, whereupon the trial court discharged the jury and entered judgment upon the verdict as corrected. Appellant filed a motion for new trial, supporting same by the affidavit of one juror. Upon presentation of the motion this juror testified. His testimony is in the record. He says: "We really thought application was on file for suspended sentence and the verdict I agreed to was a verdict with a suspension of sentence. I don't believe I would have agreed to a verdict without a suspension of the sentence." In his affidavit attached to the motion he stated that his reason for wanting the suspension of sentence was that the defendant had proved a good reputation as a law-abiding citizen and that he had never been arrested but once before for any other crime, which was for burglary, and that he was acquitted of that. Asked on the hearing of the motion about this part of his affidavit, he makes the following explanation: "We understood that he had been arrested, but there was no conviction. Yes, the district attorney asked him about a burglary charge and then it was shown that he wasn't convicted of that offense; THE COURT INSTRUCTED US NOT TO CONSIDER THAT TESTIMONY FOR ANY PURPOSE, and I don't know that we did consider that particular testimony, but the evidence all round showed that he had been a good negro. We agreed that as he was a good negro and paid his bills we would recommend a suspended sentence. Yes, when the jury came in with the verdict the only verdict the court read was that assessing the punishment at two years in the penitentiary and he asked us if that was our verdict, to which there was no dissenting voice then, but it was written on there; the judge read the sentence and told us the suspended sentence wasn't submitted. * * * As to no one objecting when the judge read the verdict, of course under the conditions in the charge we had to give him two years, but there was some doubt of his identification as being the negro and by that name he had been going by, we decided he oughn't to serve two years in the penitentiary." Notwithstanding appellant and his learned counsel were present when the court struck out of the verdict that part of same which had reference to an issue not submitted in the charge, and which clearly rendered it informal, — no objection was made or exception taken, and no opportunity then afforded the court of knowing that his course was objectionable, or of sending the jury back to themselves correct the informality.

Art. 696 Cow. C. P., authorizes judges of courts to reduce verdicts to proper form with the consent of the jury, and it is only when the jury refuses to have their verdict altered that it is deemed necessary under the plain terms of said article to return the verdict to them and send them back for further deliberation. The right and power of the judge in this regard has been affirmed in many cases. Robinson v. State, 23 Texas Crim. App. 315; Taylor v. State, 14 Texas Crim. App. 340; Jones v. State, 7 Texas Crim. App. 103; Alston v. State, 41 Tex. 639; Walker v. State, 13 Texas Crim. App. 618; Guest v. State, 24 Texas Crim. App. 530; Gage v. State, 9 Texas Crim. App. 259; May v. State, 6 Texas Crim. App. 191; Rocha v. State,38 Tex. Crim. 69; Jones v. State, 54 Tex.Crim. Rep.; Black v. State, 68 S.W. Rep. 683; Fifer v. State, 64 Tex. Crim. 203; Allison v. State, 98 Tex.Crim. Rep.; Scott v. State, 97 Tex.Crim. Rep..

In the Robinson case, supra, the jury returned a verdict finding the accused guilty of theft of $20.00 and assessed his punishment at confinement in the penitentiary for thirty years. When read in court the foreman of the jury requested the court to reduce the verdict to proper form. The district attorney wrote the following verdict: "We, the jury, find the defendant guilty of robbery as charged in the indictment, and assess his punishment at thirty years in the State penitentiary." The jury all, assented to this verdict. When complaint of this procedure was before us this court said: "The court having authority to amend, the verdict as amended was legal." In May's case, supra, the accused was on trial for an offense embracing degrees, and the different degrees were submitted in the court's charge. The verdict as returned was general. The clerk wrote in the verdict the particular offense ascertained from the jury as that of which they intended to find the accused guilty. The jury assented to the change. This court held it correct. In Rocha v. State, supra, the jury were instructed to state in their verdict what they found to be the age of the accused. They failed to so state. The court verbally interrogated them and himself inserted this necessary material fact in their verdict. They agreed. We upheld the verdict. In Allison's case, supra, the court changed the verdict by striking out the word "possessing" and having written therein the word "receiving." Each of the present judges of this court examined this record and wrote therein and the verdict was upheld.

Reference is made in appellant's brief to Bessett v. State, 180 S.W. Rep. 251, and it is cited as authority for his contention. The opinion in that case appears to be absolutely correct upon its facts, but seems to have no bearing whatever upon the point here involved. The opinion is by Presiding Judge Davidson, and is in his usual logical style. Its facts show that the jury thought they had the right to give a suspended sentence. They came into court and asked the judge if they could do so. He informed them in writing that they could not. Later they brought in a verdict recommending the suspension of the sentence. The court RECEIVED IT AND DISCHARGED THE JURY, and then proceeded to enter up judgment, omitting the matter of suspending the sentence. Judge Davidson says in his opinion that if the jury returned a verdict which they were not authorized to do, the court did not have any authority to receive it. Discussing Art. 774, 1911 Cow. C. P., which is now Art. 696, 1925 Cow. C. P., Judge Davidson says that it provides, if the jury refuse to have the verdict altered, they shall again retire to their room to deliberate. He further says: "The jury did not refuse to change their verdict, for they were not required so to do by the court, nor did the court call their attention to it." He refers to Art. 773, 1911 Cow. C. P., which has been combined in and is now also a part of Art. 696, 1925 Cow. C. P. He says that this provides that if the jury find a verdict which is informal, their attention shall be called to it and with their consent the verdict may, under direction of the court, be reduced to proper form. This the writer understands to be a clear intimation on the part of Judge Davidson that in case there be a verdict such as was brought in the Bessett case, and such as was brought in in the case now before us, the court had the right to call the attention of the jury to the verdict and to reform it. Judge Davidson proceeds in the opinion in the Bessett case: "There was no attempt by the court to have the verdict reformed or changed as required by this statute. The verdict was brought in, received by the court, the jury discharged, and judgment entered upon it as brought in, except the judgment omitted the suspended sentence recommendation. Upon this the court entered judgment and sentence against the defendant in the face of the verdict brought in by the jury." Further in the opinion Judge Davidson continues: "The verdict was rendered against positive and unqualified instructions of the judge not to return such verdict, yet the judge received it in the face of all this, and discharged the jury even without a reprimand, and substituted a verdict as basis for a judgment the jury did not return." Further in the opinion Judge Davidson makes this observation, speaking of the power and duty of the judge: "He has power to cause a correct and proper verdict to be returned, and, if such verdict is not rendered, he can retire the jury till they agree on such a verdict." It seems plain from this opinion that Judge Davidson's reasoning was to the effect that if the court had changed and reformed the verdict, or upon the jury refusing to have this done, had retired them, in either event there would have been no need for a reversal. The proposition that the court can not receive a verdict, discharge the jury, and thereafter change the verdict in any material part, has been often affirmed by this court, and is in accord with its uniform holdings. In Baker v. State, 70 Tex.Crim. Rep., we said: "The court could not accept the verdict of the jury and permit it to stand, and yet refuse to abide by it." The same thing is held in Essery v. State, 72 Tex.Crim. Rep., and in Coleman v. State, 75 Tex.Crim. Rep.. We know of no holding to the contrary.

Believing that the action of the court in this case was entirely proper, that it was agreed to by the accused, his attorneys and the jury, and that appellant's contention is not sound, the judgment will be affirmed.