Shaw v. State , 2 Tex. Ct. App. 487 ( 1877 )

White, J.

It is unnecessary to notice but a single point presented by the record in this case. This point is thus made to appear in the motion for a new trial, which was overruled, to wit:

“2d. Because it does not appear from the record that there was a finding by the jury, whose province alone it was to find him (defendant) guilty or not guilty.

“ 3d. Because the verdict of the jury is vague, uncertain, and unintelligible, and will not sustain a judgment of conviction against him (defendant) as charged in the indictment.”

The verdict actually returned by the jury into court, as shown by the affidavit of the district clerk, was in the following words: “We, the jury, the defendant guilty, and assess the punishment at two years’ confinement in the penitentiary at hard labor. T. A. Hill, foreman.”

It will be noticed that the word “ find ” is left out of the verdict; but in the judgment it was supplied. The questions are, Was the verdict as rendered a good and sufficient one; and, if not, could the court make it sufficient and certain by supplying the defects and omissions in it ?

A verdict is the opinion declared by a jury as to the truth of matters of fact submitted to them for trial. It is the determination of a:, jury upon the matters of fact in issue in a cause, after hearing the case, the evidence, and the charge of the court. Burrill defines a verdict to be “the answer of a jury made upon any cause, civil or criminal, committed by the court to their.examination.” 2 Burr. L. Die.

Contrary to. the rule of practice in criminal cases at common law,, our statute evidently contemplates that the verdict of a jury in a criminal case shall be in writing ; for it is provided that, “when the jury have agreed upon a verdict, they shall be brought into court by the proper officer, and if, when asked, they answer that they, have agreed, the verdict shall be read aloud by the clerk ; and if in proper form, and no juror dissents therefrom, and neither party requests to have the jury polled, the verdict shall be entered upon the minutes of the court.” Pasc. Dig., Arts. 3088, 3090.

Again: “The verdict in every criminal action (must be general; * * * where the plea is, not guilty, they (the jury) must find that the defendant is either ‘guilty’ or ‘ not guilty,’ and in addition thereto they shall assess the punishment, in all cases where the same is not absolutely fixed bylaw to some particular penalty.” Pasc. Dig., Art. 3091.

“ Art. 3092. If the jury find a verdict which is informal, their attention shall be called to it; and with their consent the verdict may, under the direction of the court, be reduced to proper form.”

From the above rules it seems evident that it is intended that the jury must, by their verdict in writing, "find the defendant,” in a criminal case, either guilty or not guilty; and that no informality .in their verdict can be corrected save with their consent.

In this respect the rule is different in criminal and civil cases. In the latter it has been held that strict form is unnecessary in the verdict as given by the jury, if it can be ascertained what the verdict of the jury is ; and again, that, although a verdict is informal and does not find the issue in terms, yet, if a finding of the matter in issue may be concluded out of it, it is sufficient. Thompson v. Musser, 1 Dall. 458; Jones v. Julian, 12 Ind. 274; Porter v. Rummery, 10 Mass. 64; Crozier v. Gano, 1 Bibb, 257; Pichett v. Pichett, 2 Bibb, 178; Denny v. Parker, 2 Bibb, 427; Cane v. Watson, 1 Morris, 52; Allen v. Aldrich, 29 N. H. 63; Petters v. Bingham, 10 N. H. 514; Lowery v. Brown, 3 Sneed (Tenn.), 17; Dyer v. Hatch, 1 Ark. 339.

But even in civil cases a verdict which is uncertain in a material point is void. Sutton v. Barrett, 1 Mass. 153; Hayward v. Bennett, 3 Brev. 113. And it seems that in civil cases a verdict cannot be amended by the court, in a matter of substance. Wallace v. Hillard, 7 Wis. 627.

In criminal cases it is the duty of the court to require an incomplete verdict to be made complete before receiving it. Cook v. The State, 26 Ga. 593.

In the case of Sargent v. The State it was held that, "after the verdict has been received and the jury discharged, the control of the jury and of the court over such verdict is at an end. The court cannot alter it, nor can the jury be recalled to alter or amend it.” 11 Stan. (Ohio) 472.

In the case of Ross v. Austill it was held that “ the verdict must conform to the issues, and if the court, instead of having the verdict corrected by the jury, attempt to correct it by the judgment, and go beyond the verdict, it is error.” 2 Cal. 183.

For the reason that the. verdict in this case is not such a finding as is required by law, and because the court erred in attempting to correct the defect in the verdict by supplying it in the judgment, when it should have granted a new trial instead, the judgment is reversed and the cause remanded.

Reversed and remanded.