Miller v. State , 1884 Tex. Crim. App. LEXIS 130 ( 1884 )

Willson, Judge.

The indictment charges burglary with intent to commit theft, and also charges theft of property of less value than twenty dollars. By the charge of the court, the question as to the burglary was alone submitted to the jury. The verdict of the jury found the defendant “guilty as charged in the indictment.” The judgment of the court considered and adjudged him guilty of “ robbery.” He was sentenced to imprisonment in the penitentiary for a term of two years for “theft and burglary.”

It is no objection to an indictment that it charges both burglary and theft. (Howard v. The State, 8 Texas Ct. App., 447; Code Crim. Proc., Art. 714; Dunham v. The State, 9 Texas Ct. App., 330.) But can a conviction be had for both offenses when thus charged in the same indictment, and a separate punishment assessed for each, or a joint punishment assessed for both? We think not. In Howard v. The State, supra, this court said: “If both are charged in one indictment, we think it clear that the theft would be included in the burglary, and that no judgment could be rendered for the theft. And in such a case the conviction for burglary would be a bar to a subsequent prosecution for theft.”

In the case before us the conviction is for both offenses, that is, the indictment charges both and the verdict finds the defendant guilty as charged in the indictment. It was perhaps the intention of the jury to find the defendant guilty of the burglary alone, as the punishment assessed is the minimum prescribed by the law for that offense, and yet the plain language of the verdict includes both offenses. This verdict was not warranted, ? either by the charge of the court, because the issue of the defendant’s guilt of the theft charged 'was not submitted to the jury by the charge. Again, while the judgment does not conform to the verdict, the sentence does, and the defendant is sentenced for both burglary and theft.

We might reform the judgment if there was anything certain in the verdict by which we could do so; but we would be proceeding upon uncertainties were we to undertake it. We could not make the judgment and sentence declare the conviction to be for burglary, when the verdict and sentence declare that it was for burglary and theft together. We could not make the judgment adjudge the defendant guilty of both burglary and theft, because he cannot be legally- adjudged guilty of both these offenses in this case. We must reverse the judgment and remand the cause for a new trial, in order that these errors may be corrected.

Reversed and remanded.

Opinion delivered June 11, 1884.