Manley v. State

Upon mature reflection we have concluded that those matters referred to in our former opinion as irregularities, — were of such gravity as that this conviction should not be allowed to stand.

Article 740, C.C.P., forbids the giving of a verbal charge except in a misdemeanor case and permits it then only by the consent of the parties. This was discussed in the recent cases of Riley v. State, 92 Tex.Crim. Rep., 243 S.W. Rep., 467 and Osborne v. State, 93 Tex.Crim. Rep., 245 S.W. Rep., 931. While the record in this case reflects no expressed objection on the part of appellant to the giving of the verbal charge by the trial court, this may have arisen from a misunderstanding on the part of appellant's counsel, for during the argument a sharp controversy arose between the State and the defense over the question as to what the court had told the jury in the charge, — to support which the court copied certain sections of the law which he had read to the jury and gave them to the jury to take into their retirement. At this point appellant objected and asked that the charge be presented in writing. The court's qualification to appellant's bill of exceptions No. 1 sets out that at this point the court wrote out in writing a charge and that he went into the jury room and there read it to the jury or delivered it to them, and that neither counsel nor the appellant was in said room when this was done. This course of conduct would seem subject to the criticism of part of the opinion in the Osborne case, supra. Without controversy it is also made to appear that the court read to the jury in his verbal charge the law of a disturbance of the peace by cursing, swearing, etc., in a public place. This had no sort of application, there being no such charge laid in the information. It also appears that a copy of this part of the law was written out and given the jury by the court when the controversy between the attorneys arose. What of this written copy of the law of peace disturbance does not appear further than that the court in his qualification to appellant's bill of exceptions above mentioned says he instructed the jury to disregard all former charges. We find no such instruction in the written charge appearing in the record, unless it be by deduction from the statement that "The law of the case is herein given you and you will be governed thereby." It is further true that the verdict of the jury as first returned, found appellant guilty of disturbing the peace and that the court amended the verdict so as to make it apply to the second count in the information. Informal verdicts should be corrected by the trial courts or under their direction, but the fact of the character of verdict first returned is here mentioned as illustrating that the irregularities referred to may have operated to the hurt of the accused.

Being impressed from this record that we erred in our former conclusion, the motion of appellant is granted, the conviction set aside, and the judgment of the trial court now reversed and the cause remanded.

Reversed and remanded.