Caldwell v. State , 122 Tex. Crim. 613 ( 1932 )

The offense created by section 5 of chapter 63, of the General Laws of the 39th Legislature, makes penal him who, acting in concert with others, masked or in disguise, "shall assault or shall falsely imprison any other person." Examination of article 1169, P. C., defining false imprisonment, reveals that one element of said offense is,by an assault; and in Judge Willson's Criminal Forms, 486, he lays down the making of an assault as one of the things to be alleged in charging the offense of false imprisonment. It seems clear to the writer that in drawing the indictment herein the intent of the pleader was to charge false imprisonment by this appellant and others acting in concert, some of whom were masked and in disguise.

Said indictment, omitting formal parts, charges that: "Currie W. Caldwell, in the County of Navarro and State of Texas, then and there acting in concert with Jimmie Nash, Oliver Clapp and Chas. R. Hassell, and each of them, and the said Currie W. Caldwell, Jimmie Nash, Oliver Clapp and Chas. R. Hassell, and each of them, then and there aiding and abetting each other, and the said Jimmie Nash and Oliver Clapp, and each of them, being then and there masked and in disguise, did then and there unlawfully assault and falsely imprison Robert Cerf; and by means of said assault and by means of actual violence to the person of the said Robert Cerf, and by the exhibition and use of a pistol, did then and there wilfully and without authority of law, and against the consent of the said Robert Cerf, detain the said Robert Cerf, and did then and there and thereby unlawfully and wilfully restrain the said Robert Cerf from removing from one place to another, as he, the said Robert Cerf, might see proper, contrary to the forms of the statute in such cases made and provided, and against the peace and dignity of the State.

"S. B. Jordan, Foreman of the Grand Jury."

There is no duplicity in said indictment, when considered as has just been indicated. True, under the terms of said section 5, chapter 63, supra, an offense would be charged if the pleader had omitted from the indictment everything except the averment of an assault, but he saw fit apparently to allege the more comprehensive charge of false imprisonment; and the fact that therein appears the element of an assault pleaded furnishes no reason for an exception to the indictment on the ground of duplicity.

The charge of the trial court was excepted to because it, in effect, told the jury that appellant was charged with two felonies; also because it authorized the jury to convict appellant of two felonies, and failed to require them to elect upon which offense they would base a conviction.

Examining the charge, we note that the court in paragraph four gave an extended definition of assault; and also of false imprisonment. In paragraph six the jury were instructed that if they found and believed from the evidence beyond a reasonable doubt that appellant, acting in concert with others named, some one or more of whom were masked or in disguise, "did commit an assault, as heretofore defined, upon C by the use of a pistol or actual violence as alleged, OR did falsely imprison said C, as that term has been defined to you, — then if you so believe beyond a reasonable doubt, you should find appellant guilty, — 'of committing an assault while masked or in disguise,' as charged in the indictment, OR falsely imprisoning C while masked or in disguise, as charged in the indictment, — and you should assess his punishment at confinement in the penitentiary for any term of years not less than five." The verdict returned found appellant guilty "as charged in the indictment," and fixed his punishment at twelve years in the penitentiary. In his judgment on said verdict the trial court adjudged that appellant had been found guilty of an assault on C while masked, etc.

In Goldstone v. State, 114 Tex.Crim. Rep., we discussed an almost identical point. In that case there were two counts, and the charge was excepted to because it did not tell the jury they could not convict of but one count, and because it did not tell the jury to state in their verdict of which count, if any, they found the accused guilty. The verdict in that case was general and in terms like that here.

The case at bar differs from the Goldstone case, supra, in this: That here, while there was but one count in the indictment, still, as clearly evidenced by the charge and the court's application of the verdict to the offense of an assault, it was regarded that two offenses were charged in the indictment, and same were accordingly so submitted in the charge in which the jury were told to find the accused guilty of the one offense, if they found the facts so and so, but of the other if they reached a different conclusion. In the face of this express instruction by the court, he received from the jury a verdict not specifying of which offense they found the accused guilty; but on the contrary find him guilty generally "as charged in the indictment," and fixing a penalty at more than double the minimum penalty for either offense, or either phase of the offense submitted.

After having given the charge above set out, it appears clear that the learned trial judge in the instant case should not have received the verdict returned, and should have called the jury's attention to their failure to specify of which offense or phase of the offense they found appellant guilty. They may have intended to find him guilty of only one offense, in which event their attention being thus challenged, their subsequent verdict would have expressed their intention; but this was not done, and we can not tell, nor under facts like those in this case, when considered in the light of the charge given, can we indulge speculation.

So believing, we are constrained to overrule the State's motion for rehearing, and it is accordingly so ordered.

Rehearing overruled.