Roberts v. State

This conviction was for theft from the person, and the punishment assessed at two years' confinement in the penitentiary. The sufficiency of the verdict is called in question. As found in the record, the verdict reads as follows: "We, the jury, find the defendant guilty as charged in the indictment, and assess his punishment at conprisonment in the State penitentiary for the term of two years." The original verdict is found in the record, but, if identified so that we could consider it, we find the very word "confinement" or "conprisonment" too badly torn to be able to form any conclusion as to how it was written by the jury as corrected by the court. We shall consider the verdict as found copied in the judgment above quoted, in the determination of the case. "It is well settled," as was said in Birdwell's case, "where the sense is clear, that neither incorrect orthography nor ungrammatical language will render a verdict illegal or void, and that it is to be reasonably construed, and in such manner as to give it the meaning intended to be conveyed by the jury." Birdwell v. The State, 20 So. W. Rep., 556; Stepp v. The State,31 Tex. Crim. 349. If the word "confinement" was written "conprisonment," and such spelling constitutes no word in the English language, still the verdict is perfectly intelligible. "At conprisonment" may be rejected from such verdict without affecting it in the least. It would still be complete, and "assess his punishment in the State penitentiary for the term of two years." When viewed in the light of the indictment and the charge of the court, it is too plain for discussion that the intention of the jury was to, and they did, convict defendant of theft from the person. We can not assent to set aside verdicts for such supposed errors as this.

It is insisted that the charge in regard to the defendant's explanation of the stolen property, while sufficient if applied in ordinary theft cases, is incorrect and fundamentally wrong when applied to the case in hand. We are unable to appreciate this distinction. While the different phases of theft are constituted by different facts, yet if the possession of the supposed stolen property is reasonably accounted for in either case, and the property is obtained otherwise than fraudulently, the State must fail. An honest possession of the property would apply as well to defeat one charge as the other, or a possession not fraudulently obtained from the owner would operate in either case to defeat the State. The office or effect of the "reasonable explanation" of the possession of recently stolen property is to rebut the idea of fraud, and this would evidently apply as well to theft, from the person as to ordinary theft. The court did not err in omitting a charge upon the law in regard to misdemeanor theft. Under an indictment charging theft from the person, an accused party can not be convicted of their of property under $20 in value. Harris v. The State, 17 Texas Crim. App., 132; Gage v. The State, 22 Texas Crim. App., 123; Green v. The State, 28 Texas Crim. App., 493.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.