Modica v. State , 94 Tex. Crim. 403 ( 1923 )

The verdict rendered by the jury herein is as follows:

"We, the jury, find the defendant, John Modica, guilty of theft of property of $50.00 or over in value in counts two and five of the indictment and assess his punishment at confinement in the penitentiary for seven years. G.T. Moore, Foreman." From this it appears that the jury have found appellant guilty of two felonies. This they had no right to do under our settled procedure. O'Bryan v. State, 27 Texas Crim. App. 339; Crawford v. State, 31 Tex.Crim. Rep.; Carr v. State, 36 Tex. Crim. 3; Pitts v. State, 40 Tex.Crim. Rep.; Lovejoy v. State,40 Tex. Crim. 89.

It is the duty of the courts to indulge every reasonable intendment in upholding the verdicts of juries. In doing this we have applied in some cases general verdicts to some one count submitted, where more than one appear, provided the punishment fixed be such as that it can be concluded that the jury intended to punish in but one case. General verdicts with minimum punishments have also been applied to good counts in cases where others were defective, but we know of no case in this State which upholds the doctrine that a verdict specifically finding the accused guilty under more than one count in a felony case, which affixed a punishment greater than the minimum, could be upheld.

The statutes of our State and numerous decisions of this court make it the duty of the trial courts to decline to receive informal or insufficient verdicts, and direct that the jury be told upon trials where plural counts are submitted to them in the charge, that they must say by their verdict of which count, if any, the accused be found guilty. If it be argued that in certain cases separate counts in indictments charging theft of the same property from different owners, be permissible or commendable practice, — we readily agree, and also to the proposition that to the legal mind this might present but phases of the same transaction, so pleaded to meet the proof as it might develop; but the jury are not lawyers and beyond question injury might arise in many cases if we attempt to uphold their action upon the hypothesis that they understood the necessary legal procedure in matters which the court failed to tell them about in his charge. In this case the jury were not told that they could convict only under one count, nor that they must specify in their verdict of which count, if any, they found the accused guilty. They plainly find him guilty under two counts. They fixed punishment at more than double the minimum for either count of which they find him guilty. The judgment entered by the learned trial court does not attempt to fix guilt under either one count or the other but broadly adjudges appellant guilty of felony theft.

Believing the jury without authority to return a verdict finding the accused guilty of two felonies, and that the record in this case reflects that such course was pursued herein, appellant's motion for rehearing will be granted, the affirmance herein set aside, and the judgment of the trial court now reversed and the cause remanded.

Reversed and remanded.