Bowles v. State , 140 Tex. Crim. 511 ( 1940 )

We have before us the State's motion for rehearing.

In the absence of a statement of facts and any bill of exception, if by any legitimate construction the judgment of the trial court can be sustained, it is our duty to do so.

The case having been tried before the court without a jury, of course, we have no charge to a jury, nor the verdict of a jury to aid us. The finding of the court where the case is tried before him is equivalent to the verdict of a jury in the present instance, and as reflected by the judgment it apprises us of nothing save that the court found appellant "guilty," and assessed a punishment of six months in the county jail. The judgment does not recite of what offense appellant was adjudged to be guilty, but simply remands him to jail for six months.

The question before us usually arises where an accused has been charged with an offense consisting of degrees, such as aggravated assault, which includes simple assault, and the verdict or judgment simply finds accused "guilty," and assesses a punishment which might be inflicted for either simple or aggravated assault. Illustrative, see Moody v. State,52 Tex. Crim. 232, 105 S.W. 1127, cited in our original opinion; Winzel v. State, 47 Tex.Crim. Rep.[47 Tex. Crim. 267],83 S.W. 187; Kinchen v. State, 80 Tex.Crim. R.,188 S.W. 1004. We wish to emphasize what was said by this Court in the case last mentioned and quote therefrom as follows: "* * * we wish to call the attention of trial courts and prosecuting officers again to the necessity of having the jury specify in the verdict the grade of the offense of which the appellant is convicted in cases where more than one degree or grade of the offense included in the indictment is given in charge to the jury. It saves trouble and prevents questions arising on the appeal that are unnecessary or ought to be unnecessary. These questions ought not incumber records on appeal. For instance, where aggravated and simple assault are submitted to the jury, the jury should specify in their verdict of which grade of the offense they convict. There are numerous other statutes where inferior grades of offenses are included or may be included under the evidence in the charge of the court. Wherever this is the case, the verdict of the jury should specify the degree of the offense of which the jury convict."

While the court was there speaking of jury verdicts and judgments thereunder, it has equal application to similar cases tried before the court without a jury.

The State's pleading in the present case in one count charges negligent homicide of the first degree, and in another count negligent homicide of the second degree. The plea of appellant was not guilty to both counts. The very wording of the statute, (Arts. 1230 to 1243 P. C., inclusive,) makes negligent homicide an offense of two grades or degrees. Both were charged against appellant. The punishment assessed is applicable to either, yet neither the finding of the trial court nor the judgment entered disclose of which offense appellant was convicted.

There is a memoranda at the top of the judgment as follows: "March 30, 1940, Negligent Homicide Second Count." This memoranda may hint that probably appellant was found guilty of negligent homicide of the second degree, but it does not supply the failure of the judgment to so recite. The seventh paragraph of appellant's motion for new trial says: "The Court erred in finding defendant guilty of negligent homicide in second degree when the undisputed evidence showed the collision to be an unavoidable accident."

The said motion was only a pleading in the cause and cannot be utilized by this Court to supply deficiencies in the judgment, for which there seems little excuse.

The motion for rehearing is overruled.