Rambo v. State ( 1923 )

On Application to Pile Second Motion for Rehearing.

LATTIMORE, J.

In reforming the judgment and directing the application of the verdict in the judgment to the offense set out in the second count of the indictment, we do not think our action open to the objection that we thus set aside a verdict that is certain. It seems clear that a verdict finding the accused guilty of the offenses charged in two counts, which offenses in most phases are identical, and in which verdict a penalty is fixed which is the minimum punishment for one offense, could be no more changed or affected by making it apply to one of said offenses than would be the case when there are two or more good counts in the indictment,, and a general verdict is returned finding the accused guilty as charged in said indictment. The reasoning of this court in Lovejoy v. State, 40 Tex. Cr. R. 100, 48 S. W. 522, cited by appellant, seems to us to apply. In said opinion, after stating that the better practice would be to require an election, this court says:

“The question now presented is: Where this practice is not pursued, and the jury have returned a general verdict under an indictment with different counts covering distinct offenses, and the court has applied the verdict, can we uphold the action of the court in this regard, when it is presented for the first time by a motion in arrest of judgment or for new trial? These authorities which hold that the court has the authority base their decisions upon the proposition that the verdict is general; that is, the jury have found defendant guilty upon all the counts, and it is perfectly competent for the court to apply it to any one. There is much force in this view. But it is contended that this involves the ascertaining by the court and the selection of the particular offense charged in some one of the counts in the indictment, and so the court is made to usurp the functions of the jury, and determine the particular offense of which they may have found him guilty. But, when we remember that the jury have found him guilty upon every count of the indictment, it would certainly seem competent for the court to apply their finding to some particular count of the indictment, and, when the punishment assessed b.y them is a punishment authorized to be applied to the offense ascertained by the court, we can see no difficulty in this .doctrine of selection and application, nor is it in any respect the usurpation of the functions of the jury. Of course, he must select a count sustained by the evidence; otherwise his action would not be supported, but will be subject to revision, in motion for new trial, or, if this is refused, by the revisory court.”

And the judgment was affirmed. We have carefully considered the forcible argument of appellant in his application for permission to file a second motion for - rehearing, but find nothing therein which we think would lead to any change in our conclusion, and the application for permission to file said second motion is refused.