Henderson v. State , 149 Tex. Crim. 167 ( 1946 )

In his motion for rehearing appellant raises, for the first time, a question about the order of the court granting a severance on the application of his co-defendant, Brown. They were charged by joint indictment. Brown filed a motion for severance on the 7th day of the month. On the 19th day of the month, thereafter, appellant filed his motion asking for a severance and also asking that Brown be first placed on trial. Appellant seriously contends that the motion for severance filed by Brown was not in accord with the requirements of the statute. He then insists that his motion for severance was good and that he thereby procured a priority on the right to have his co-defendant placed on trial first. We do not so construe the statute. It appears that Brown's motion for severance did not comply with the requirements of the statute. We are likewise very doubtful that appellant's motion was sufficient to require the court to act on it. Conceding that he did act on Brown's motion and that it was bad, a severance resulted, which was the only thing that appellant could ask under Article 650 of the Code of Criminal Procedure, which controls the case where parties are jointly indicted.

Article 651 of the Code, on which appellant relies, applies to parties who are separately indicted. It would then have no application to a question of severance, but applies only to the question of the rights of such parties to ask that the other defendant be tried first. Article 652 relates back to Article 650 and provides that after a severance has been granted to one of the parties they may agree on the order in which they are to be tried, "* * * but if they fail to agree, the court shall direct the order of the trial." The court did grant a severance. This inured to the benefit of appellant, regardless of the intention of the trial court to act on the motion by Brown, and gave appellant all of the rights he could have had if the court had announced that he granted appellant's motion for severance. The next question, then was whether or not Brown should be placed on trial first.

We note that appellant's motion for severance recognizes the prerogative of the court to determine which shall go on trial first in a case wherein the two parties charged cannot agree. The record shows that Brown and Henderson did not agree and, as stated in Henderson's motion for severance, after recalling that Brown would not agree to be tried first "the burden is cast upon this court to direct which one of the two defendants be tried first." Such pleading before the court at that particular time might be construed as an agreement that the court, in the further language of the motion, "sitting as a Chancellor, exercise his prerogative and order that the said R. E. Brown be tried first * * *." It follows that he could, in the same capacity, order that Hendereson be tried first, which he did. Such admission is in accord with the plain provisions of Articles 650 and 652, C. C. P.

We think that appellant is confused by consideration of Article 651 of the Code and, furthermore, that he has misconconstrued its effect. Neither party gains a priority on a right to have the other fellow go to trial first, simply because the movant is first to file the pleading. Regardless who files a pleading, it is within the discretion and power of the trial court upon the granting of a severance to ascertain whether or not the parties agree on who shall be tried first. If they do not agree, it then becomes his duty to direct the first to go on trial. The party so directed has no right to complain. As stated by Judge Lattimore, in Strickland v. State,262 S.W. 75: "When two parties, jointly or separately indicted for offenses growing out of the same transaction, each file affidavit for severance, it is in accord with our statute that the court direct the order in which they shall be tried, and neither is in an attitude to complain."

The next question submitted on the motion for rehearing complains of the form in which the jury's verdict was returned into court. The transcript of the judgment contains the following verdict: "We, the Jury, find the defendant guilty as charged to minimum sentence of 5 years in the State Penitentiary."

We are cited to a great many cases in which this court has held the verdict to be insufficient. Usually it is where material statements have been omitted and we would be required to interplace some of the essential clauses in the verdict in order to make it intelligible. It has always been held that verdicts should receive a liberal rather than a strict construction, and should be sustained where the finding of the jury can be reasonably ascertained. The object should be to ascertain the intention of the jury. Branch's Ann. P. C., Sec. 646, and authorities annotated thereunder. The verdict in this case finds the defendant guilty as charged. This must refer to the indictment. Noland v. State, 140 S.W. 100.

It further says "sentence of 5 years in the State Penitentiary." This was held sufficient in Garcia v. State,89 S.W. 647. Construing this, as we should, in the light of the court's charge, they had a right to fix a sentence only after finding the party guilty, which they did, even though the word "assess" was not incorporated in it.

It is difficult to understand how a trial court could overlook this awkward verdict, but it appears that the lawyers representing the appellant on the trial likewise overlooked it for it is raised for the first time on motion for rehearing in this court. It is our conclusion that a fair construction of the verdict reflects the intention of the jury. They found him guilty and they gave him 5 years in the penitentiary.

The appellant's motion for rehearing is overruled.