Champion v. State , 113 Tex. Crim. 172 ( 1929 )

DISSENTING OPINION. Passing a forged instrument is the offense; punishment fixed at confinement in the penitentiary for a period of two years.

From the motion for new trial and the evidence heard thereunder, it is disclosed that the jury returned into open court a verdict in the following language:

"We, the jury, find the defendant Hillis Champion, guilty of passing a forged instrument in writing as charged in the second count in the indictment and we assess his punishment at two years in the penitentiary and recommend a suspended sentence.

M. F. Goode, Foreman."

An application for a suspended sentence had been filed in due time and in proper form. The jury was not instructed upon the subject of a suspended sentence, nor was there any exception to the charge because of the absence of such an instruction. The statement of facts upon the motion for new trial, approved by the trial judge and signed by the attorneys for both the State and the appellant, shows that there was evidence introduced upon the trial to the effect that while the appellant had been arrested for another offense, he was never convicted. According to the language of one of the jurors, "The evidence all round showed that he had been a good negro." When the jury brought their verdict into the court the judge read that part of the verdict which found the appellant guilty and omitted that part of it which recommended a suspended sentence. When the jury asked if that was their verdict, there was no response, either assent or dissent. The court stated that he had not submitted the question Of a suspended sentence. In entering the judgment, the part of the verdict recommending the suspended sentence was omitted. On the appeal there is properly raised the question as to whether under the undisputed facts stated above the trial court was warranted in entering the judgment described. The statute, Art. 693, C. C. P., 1925, requires the verdict in a criminal action to be general, except where there are special pleas, in which case the jury must indicate their finding upon the plea. Art. 778, C. C. P., 1925, in substance states that the court shall hear evidence upon the plea for a suspended sentence to enable the jury to determine whether the sentence shall be suspended and shall submit to the jury the question as to whether the accused has previously been convicted of a felony. The statute further says:

"Such testimony shall be heard and such question submitted only upon the request in writing by the defendant; provided, that in all cases sentence shall be suspended if the jury recommends it in their verdict."

In Art. 696, C. C. P., 1925, the law declares that when the verdict is informal, the jury's attention shall be called to it and with their consent it shall be corrected and reduced to proper form. If the consent is not given, the jury shall be ordered to retire for further deliberation, unless it appear that the verdict was intended for an acquittal, in which case the accused shall be discharged.

The testimony adduced upon the motion for new trial in the present instance is not believed to be inhibited by the rule which forbids the jury to impeach their verdict. When a verdict is rendered it cannot be impeached by the testimony of the jurors. When, as in the present case, the issue as to whether a particular verdict was rendered is involved, it is competent to receive the testimony of the jurors in solving the issue. In the present instance the verdict rendered, signed and returned into court by the jury was in writing and recommended that the sentence be suspended. The verdict upon which the court entered the judgment was not that but a different one. To determine whether the written verdict or the part thereof used by the court was in fact the verdict of the jury, the testimony of the jurors was relevant and competent. See Ruling Case Law, Vol. 27, p. 900, sec. 74; also p. 901, sec. 76. Without taking note of the statutes, Arts. 693 and 696 (which in the old statutes of 1911 were Arts. 770, 773 and 774), this court sanctioned the action of the trial court in striking out a part of the verdict which recommended the suspended sentence in several cases. In neither of the cases, however, was there filed any plea for a suspended sentence, nor any evidence supporting such a plea. The matter came before the court again in Bessett v. State, 180 S.W. Rep. 251, under a state of facts like those in the other cases just mentioned, namely, without a plea for a suspended sentence or evidence supporting such a plea. The majority of the court, following the cases first adverted to above, affirmed the judgment. Presiding Judge Davidson, however, called attention to the fact that in rendering the opinions in the previous cases, the statutory provisions mentioned were overlooked. In discussing the matter in an elaborate opinion and one which the writer believes to be sound, Presiding Judge Davidson expresses the view that the amendment or correction of the verdict in the case mentioned was unauthorized. He called attention to Art. 686, C. C. P., 1925 (Art. 763, C. C. P., 1911) in which it is said:

"A verdict is a declaration by a jury of their decision of the issues submitted to them in the case, and it must be in writing and concurred in by each member of the jury.

It must be a jury of 12 members — no more and no less. C. C. P., 1911, art. 764; Const., art. 5, sec. 13. The judge is not a juror, and cannot render a verdict, or any part of it, in a felony case, nor can he substitute his judgment for the verdict of a jury. He has power to cause a correct and proper verdict to be returned, and, if such verdict is not rendered, he can retire the jury till they agree on such a verdict. He cannot substitute his judgment, however, for an incorrect or illegal verdict.

My Brethren hold, under the authority of Barnett v. State,170 S.W. 143, and Speer v. State, 171 S.W. 201, this judgment ought to be affirmed, and they do affirm it. It will be noticed those two cases, however, do not discuss the statutes I have mentioned. They were not even noticed in those opinions. The fact that those decisions were by a unanimous court does not cure the failure to notice Articles 773 and 774 of Code Crim. Proc., supra. I do not evade my responsibility for the two cases cited by majority, but for that reason I am not willing to be further responsible for the error committed in those cases. The court ought to be correct in deciding the law, rather than consistent in error." (Bessett v. State, 180 S.W. Rep. 251.)

In the case of Whitley v. State, 281 S.W. Rep. 544, the matter came before the Court of Criminal Appeals as it is now constituted, and on the authority of the previous announcement of the court, the same conclusion was expressed as that of the majority of the court in Bessett's case, supra. The facts in the Whitley case were in substance the same as those in the other cases above named. There was neither a plea nor evidence on the subject of a suspended sentence. Believing as did Judge Davidson, that in each of the cases mentioned there was an invasion by the court on the function of the jury, the writer takes occasion to reiterate the words of Judge Davidson, in holding that the previous erroneous opinions should be abandoned, when he said: "The court ought to be correct in deciding the law, rather than consistent in error." If, however, the conclusion reached in the cases mentioned be regarded as a sound conclusion, it is not deemed a legitimate precedent as supporting the action of the court upon the facts portrayed by the present record. The verdict written and returned into court in the present instance did two things, namely: It declared the guilt of the appellant, and fixed his penalty. An essential part of the latter phase of the verdict was the declaration that the sentence should be suspended. It was not a matter of form but a matter of substance. It was not in the present instance without pleading but was based upon a pleading filed in due order and form. It was not without evidence, as in the cases mentioned, for it appears from the certified record on the motion for new trial that evidence supporting in some degree the suspension of the sentence had been given on the trial Correction was not made in accord with the statute. Even if the matter stricken from the verdict could be regarded as a matter of form, the statute was not followed because the jury did not consent. It was not a matter of form, however, but a matter of vital substance which the jury alone could eliminate. There is no authority in the court to correct a verdict in the matter of substance. See Follis v. State, 51 Tex.Crim. Rep.; Thompson on Trials, 2d Ed., Vol. 2, p. 1918, sec. 2633. Nor can any verdict be changed or corrected by the court without the consent of the jury. Shaw v. State, 2 Tex.Crim. Rep. (492). The judge in the present instance may have been authorized to refuse to receive the verdict because the issue of suspended sentence was not submitted. Even if the law sanctioned his refusal to receive the verdict, under the statutes which have been quoted it was imperative that he recommit the matter to the jury to the end that the jurors, in their retirement, might determine their verdict and write it in accord with their agreement or should be discharged on disagreement.

The judgment should be reversed and remanded.

Reversed and remanded.