Guest v. State

Citations

• 24 Tex. Ct. App. 530
• 7 S.W. 242
• 1888 Tex. Crim. App. LEXIS 3

Syllabus

<p>1. Theft—Indictment—Verdict.—Though under an indictment charging theft of cattle in the usual form, a conviction may be had either for the theft defined in article 749 of the Penal Code or for the misdemeanor of driving cattle from their accustomed range as defined in article 767 of the Penal Code, the verdict, to be sufficient, must show with reasonable certainty of which offense, the felony or the misdemeanor, the accused was found guilty.</p> <p>8. Same—Hew Trial.—When the indictment charges an offense which includes other offenses, and all the offenses covered by the indictment are submitted to the jury by the charge of the court, a general verdict of guilty, assessing a penalty applicable to either of the offenses, is uncertain, and will not support a judgment. The rule is that “when a verdict is so defective and uncertain that the court can not know for what offense to pass judgment, it should be set aside.” The indictment in this case charged the accused with the felony of cattle theft, and also with the misdemeanor of driving cattle, from their accustomed range. The verdict found the defendant “guilty as charged in the indictment,” and assessed the penalty applicable as well to the misdemeanor as to the theft defined in the said article 749 of the Penal Code, and the court adjudged the conviction to be for the felony. Held, that the verdict was illegal in failing to designate the offense of which the jury found the accused guilty, and does not authorize the judgment. The verdict should not have been received, but, having been received, the trial court should have awarded a new trial.</p> <p>3. Same—Evidence-—Charge of the Court—Voluntary Return of Stolen Property.—When, as in this case, the evidence on a trial for theft tends to show a voluntary return of the stolen property by the accused to the owner, within a reasonable time, and before prosecution has been instituted, it devolves upon the trial court to charge the jury upon the law applicable to such