The opinion
DAVIDSON, Judge
(dissenting).—The indictment in ordinary form charges appellant with murder. Murder is an offense consisting of degrees by statutory enactment. It embraces murder in the first and second degree, manslaughter, and negligent homicide, and may include other inferior offenses. This conviction occurred before the first of July, and was necessarily tried under the law before the change in the definition of murder went into effect, which occurred on July 1st. On June 19th the jury returned the following verdict: “We, the jury, find the defendant guilty as charged in the indictment and assess his punishment at imprisonment for life.” On the 21st of June the jury, was re-summoned, resworn and under instructions of the judge made the verdict read so as to find appellant guilty of murder in the first degree. Exception was duly reserved and perpetuated in a bill of exceptions. Judge Harper, in the majority opinion, holds that this could not be done. In this he is correct both as to civil and criminal cases. I do not purpose to go into that phase of the case, because when the court receives a verdict and discharges a jury, that terminates that phase of the trial. The verdict could not thereafter he amended or changed but such as was returned by the jury would form the basis of the judgment. The court could not itself, nor could this court, in any manner change that verdict. The Constitution as well as the statutes provide that the jury alone can return a verdict on the facts. See Constitution, article 1, section 10; article 5, section 13; Harris’ Ann. Const., pages 433 et seq., for collation of authorities.
Article 763 of the Revised Code of Criminal Procedure thus reads: “A ‘verdict’ is a declaration by a jury of their decision of the issues sub
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mitted to them in the case, and it must be in writing and concurred in by each member of the jury.”
Article 764 provides that “Not less than twelve jurors can render and return a verdict in a felony case, and the verdict shall be signed by the foreman.”
Article 770 provides: “The verdict in every criminal action must be general; when there are special pleas upon which the jury are to find, they must say in their verdict that the matters alleged in such pleas are true or untrue; where the plea is not guilty, they must find that the defendant is either ‘guilty’ or ‘not guilty’; and, in addition thereto, they shall assess the punishment in all cases where the same is not absolutely fixed by law to some particular penalty.”
Article 771 provides: “Where a prosecution is for an offense consisting of different degrees, the jury may find the defendant not guilty of the higher degree '(naming it), but guilty of any degree inferior to that, charged in the indictment or information.”
Article 674 provides: “All issues of fact presented by a special plea shall be tried by a jury.”
Article 1142 of the Penal Code reads as follows: “If the jury shall find any person guilty of murder, they shall also find by their verdict whether it is of the first or second degree; and, if any person shall plead guilty to an indictment for murder, a jury shall be summoned to find of what degree of murder he is guilty, and in either case they shall also find the punishment.”
It has been the rule, following the statutes, that a general verdict is sufficient except where the offense consists of degrees, but where there are degrees, the jury must specify the degree of which the accused is convicted. The verdict may be sufficient, however, if the jury itself should specify the degree of which they convict, without further specifying that they acquit of the higher. That the verdict rendered in this case is a nullity is so by reason of the statutes. Our courts, Supreme and Court of Criminal Appeals, have always held unless it be in the Holland case, 38 Texas, that such a verdict is insufficient, and to be absolutely a nullity. The reasoning on this line can not be better stated than was by Judge Roberts in Slaughter v. State, 24 Texas, 410 :
“It is very probable, that the parties and the court understood what the jury meant by this verdict, and that they designed to find the defendant guilty of manslaughter only. This is evidenced by the absence of any effort to correct it, and by the recital in the judgment, that the jury had found ‘defendant guilty of manslaughter.’ This recital might raise the presumption, that the verdict had been corrected, but for the fact, that its informality was made a special ground, in the motions for new trial and in arrest of judgment, which were passed upon immediately preceding the rendition of the judgment'; and their decision is recited in it.
“This conclusion that the jury intended to find the defendant guilty of manslaughter is arrived at, not from the verdict considered abstractly,
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but from the facts in proof, and the charge of the court. If this be true, the verdict was such as that judgment could not be rendered upon it. This presents the two questions to be examined: First. Is the verdict sufficient, by itself, to warrant the conclusion that the jury intended to find the defendant guilty of manslaughter ? And, second, if not, can the defect be aided, and the matter made certain, by reference to the facts in proof, and the charge of the court ? This being an indictment, in common form, for murder, embraced within it charges of every degree of culpable homicide, towit, murder, manslaughter, and negligent homicide, of the first and second degree (O. & W. Dig., 530, 531, 532, 534), the defendant might have been found guilty of any one of these degrees, under this indictment, upon the plea of ‘not guilt.’ Such plea would put in issue each one, as well as all, these degrees of culpable homicide. A general verdict of ‘not guilty.’ negatives all of them. A general verdict of ‘guilty.’ would leave it uncertain as to the degree found by the jury; hence, our Code, in accordance with the practice at common law, requires the jury, if they find the defendant guilty of any of the inferior degrees, to indicate it in their verdict. (Article 630.) A general verdict of guilty, on such an indictment, under such a rule, would be a finding of the defendant guilty of murder, the highest degree charged. The term
verdict,
in its original signification, and according to its import, as used in judicial trials, denotes a true declaration by the jury. A true declaration of what? Hot of the punishment (for originally that was not the province of the jury), but of the issue made by the parties.
“Our Code declares that ‘the verdict, in every criminal action, must be general; where there are special pleas upon which the jury are to find, they must say, in their verdict, that the matters alleged in such pleas, are either true or untrue; where the plea is “not guilty,” they must find that the defendant is either “guilty” or “not guilty”; and, in addition thereto, they shall assess the punishment in all cases where 'the same is not absolutely fixed by law to some particular penalty.’ (Article 626.) It is manifest, from this provision, that the main matter involved in the duties of jurors under our system is still to find and declare the truth of the issue between the parties; and, having done this, their finding becomes the predicate for another thing incidental, ‘and in addition thereto.’ towit, the assessment of the punishment, in certain cases. The jury is not given the power to assess the punishment at discretion; but only according to the predicate they lay for it, by their finding of the issue. The court must be informed definitely of their finding on the issue, so as to see that their assessment was warranted. To infer that they found the defendant guilty of manslaughter in this case, because they assessed the punishment which is alone applicable to manslaughter, is to take it for granted that they have properly exercised their power of assessing punishment, without their having declared their finding on the issue, which could be the predicate for such assessment, and, indeed, when their finding of a general verdict of guilty, is inconsistent
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with such assessment. This would be to allow and sanction the exercise of an incidental dependent power; not only without the necessary predicate being laid for it, but directly contrary to the predicate that was laid in their finding. It would abrogate the 630th article of the Code, requiring the jury to indicate the degree, in their verdict. A general verdict of
‘guilty/
would apply as well to negligent homicide, as to manslaughter. If that is what they intended, the punishment assessed is excessive. And, on the other hand, if they meant what they have literally expressed, that he was guilty of murder, then they had no right to assess the punishment so low as they did. A verdict can not answer the purpose for which it is required, without a compliance with the plain requisitions of the Code, in designating the degree. With it, there is no security that the jury have properly exercised their discretion in assessing the punishment.
“Can we look to the facts in proof, and the charge of the court, in order to render certain, what the jury meant b'y this finding and assessment, which is in itself incongruous? A verdict is a response given by the jury, to the court, indicating their opinion of the correspondence of the facts in proof with, those alleged, which constitute the issue between the parties. Such response has reference to the facts alleged. It may either entirely or qualifiedly affirm or negative them. The indictment, the plea, and the verdict thereon, constitute the record of the facts, judicially ascertained, upon which the judgment must be pronounced as a legal consequence. They must, taken together, be complete, to sustain a judgment, and must indicate the particular judgment which, under the law, can be pronounced. The facts in proof, and the charge of the court, were formerly not preserved, except as the mere notes of the judges, for use upon an application for a new trial, and constituted no part of the record. With us now they constitute no part of the record, except only for the purposes of revision by the Supreme Court, upon appeal. It is only after notice of appeal, that the statement of facts is required to be made and placed in the transcript. (Articles 739, 673.) The object of the statement of facts, and the charge of the court, is to show, the verdict rendered was contrary to the facts or the law, and that it should not have been rendered; not to correct any incongruity in the terms of the verdict, and reform it. To aid the verdict, by a resort to such sources of information, would be a departure from all the principles regulating the subject.
“The verdict and assessment of punishment, considered in connection with the indictment and plea, present a plain inconsistency) for which there is no certain solution. It is certain that the jury were mistaken in their duty. If they intended to find him guilty of murder, they were mistaken in the punishment which they had the power to assess; if they intended to find him guilty of manslaughter, as their assessment would indicate, they were mistaken in the manner of finding the issue, so as legally to convey that idea in the verdict. Therefore, their assess
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ment of punishment has no appropriate support, and can not be made the judgment of the court.”
I could not add anything to this reasoning by the illustrious Roberts were I to try. It would be a work of supererogation to undertake to argue about a question, or' to reason about or add to it where Judge Roberts had devoted his time and attention to and written upon the subject. I would hardly feel like appealing from a decision of Judge Roberts under such circumstances. The fact that he wrote and signed an opinion is authority to the legal and judicial mind of Texas. The opinion in the Slaughter case, supra, was followed in an opinion by Judge Moore, in the case of Buster v. State, 42 Texas, 315 . Judge Roberts at that time was Chief Justice of the Supreme Court, and the opinion in the Buster case becomes a part of the jurisprudence of our country with his sanction. Since the rendition of the Buster case, so far as I am aware, the matters adjudicated in that and the Slaughter case, in regard to verdicts, has never been questioned until the opinion in this case by Judge Harper. Even Judge Prendergast, as late as the 62 Texas Crim. Rep., 648 , in Burton v. State, recognized the correctness of the cases of Slaughter and Buster, and gave them the sanction of his approval. In the Burton case Judge Prendergast also referred, approvingly, to the case of McCloud v. State, 37 Texas Crim. Rep., 237 . The opinion in the McCloud case was written by Judge Hurt. In that opinion Judge Hurt gave the sanction of his wonderful judicial mind to the correctness of the opinion in the Buster case. Quoting from the McCloud case I find this language: “The indictment charged appellant with the murder of Jeff Varner. The jury returned the following verdict: ‘We, the jury, find the defendant guilty as charged in the indictment, and assess his punishment at confinement in the penitentiary for life.’ ” This seems to be almost identical with the verdict found by the jury in the instant case. Judge Hurt continuing said: “This verdict is absolutely void, because it does not conform to the requirements of the statute, which reads: ‘If the jury shall find any person guilty of murder, they shall also find by their verdict, whether it is of the first or second degree. ... In the case of Buster v. State, 42 Texas, 315 , Buster was charged with murder upon express malice. The verdict of the jury was, ‘We, the jury, find the defendant guilty as charged in the indictment, and assess his punishment to be hanged by the neck until dead.’ Judge Moore, in that case, held the verdict fatally defective, because it did not name the degree of murder. That case is in all particulars the same as this, except that in that case the death penalty was assessed, and in this case the punishment was confinement in the penitentiary for life. Judge Moore reasons the question at some length very cogently, and suggests the reasons which prompted the Legislature to pass such an act. We can add nothing to what he has said upon this question. This court has invariably followed that opinion. In the language of Judge Moore: ‘But, whatever may have been the motive for its enactment, thus it is plainly written in the
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Code; and, until altered or repealed, it is evidently the duty of the court to observe and enforce it.’ ” I might follow these quotations from the various opinions that have been written from time to time, all in entire harmony. In Sanders v. State, 18 Texas Crim. App., 373, an opinion written by Presiding Judge White of this court, we find this language: “A verdict of guilty in a murder case is not valid under our Code unless it expressly finds, and declares explicitly and positively, the degree of murder of which the defendant is found guilty. Without the degree is thus found by the verdict, the verdict is an absolute nullity,” citing Buster v. State, 43 Texas, 315 ; Dubose v. State, 13 Texas Crim. App., 418; Wooldridge v. State, 13 Texas Crim. App., 443; Clark’s Crim. Law of Texas, p. 314, note "Verdict.” This doctrine has been laid down in such a long array of authorities that it would seem like the question ought to be settled finally if a question can be settled. In support of the above cited case, I further enumerate the following as holding the statute mandatory: Colbath v. State, 2 Texas Crim. App., 391; Brown v. State, 3 Texas Crim. App., 294; Krebs v. State, 3 Texas Crim. App., 348; Dubose v. State, 13 Texas Crim. App., 418; Wooldridge v. State, 13 Texas Crim. App., 443; Armstead v. State, 22 Texas Crim. App., 51; McCloud v. State, 37 Texas Crim. Rep., 237 ; Isbell v. State, 31 Texas, 138 ; State v. Jackson, 99 Mo., 60 , 12 S. W. Rep., 367 ; Sanders v. State, 18 Texas Crim. App., 372; Harbolt v. State, 40 S. W. Rep., 983 ; Martin v. State, 36 S. W. Rep., 11 ; Nettles v. State, 5 Texas Crim. App., 386; Brooks v. State, 42 Texas Crim. Rep., 347 ; Lyles v. State, 48 Texas Crim. Rep., 119 ; Zwicker v. State, 27 Texas Crim. App., 539; Johnson v. State, 30 Texas Crim. App., 419; Doran v. State, 7 Texas Crim. App., 385; Thomas v. State, 43 Texas Crim. Rep., 20 ; Burton v. State, 62 Texas Crim. Rep., 648 ; Orner v. State, 65 Texas Crim. Rep., 137 , 143 S. W. Rep., 935 ; Branch’s Crim. Law, section 842.
The opinion in the Burton case was written by Judge Prendergast, and delivered June 1, 1911. The Orner case was subsequently written, and is found reported in 65 Texas Crim. Rep., 137 , 143 S. W. Rep.,
935.
Several of these cases
charge
the homicide to have been committed by poisoning. Under the statute, therefore, it was murder in the first degree. Johnson v. State, Brooks v. State, and Orner v. State, particularly, it is noted were eases of homicide by poison. In the Orner case I had the honor of writing the opinion,
to
which my brethren assented, and in which they fully concurred. In the Orner case there were suggestions made to the trial courts as well as the prosecution not to permit cases to come on appeal that contained verdicts of that character. It was in the face of the statute, which statute had been sustained, holding all such verdicts to be nullities. Judge Harper, in his opinion, says: "In many cases, which will be found collated in section 843 of Branch’s Crim. Law, it will be seen that this court has held a verdict erroneous which fails to state the degree of murder of which the person on trial has been adjudged guilty. But in none of them has the case been
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reversed because of this error alone.” I am persuaded that the judge did not give the consideration of this matter the usual character of his investigation of subjects, for had he looked critically he would have found several cases where that was the only question decided, and in some of the cases the only point decided on-which reversal took place. I note for instance in this connection the following cases: Colbath v. State, 2 Texas Crim. App., 391; Slaughter v. State, 24 Texas, 410 ; Isbell v. State, 31 Texas, 138 ; Nettles v. State, 5 Texas Crim. App., 386; Zwicker v. State, 27 Texas Crim. App., 539; Doran v. State, 7 Texas Crim. App., 385; Harbolt v. State, 37 Texas Crim. Rep., 639 , 40 S. W. Rep., 998 . It will be useless to pursue this phase of the matter further. There is the case of Holland v. State, 38 Texas, 474 , which seems to hold to the contrary. I do not care to discuss that case. It was overruled in Buster v. State, supra, and from that day to this has not been recognized as authority by any court, so far as I have been able to- ascertain, but as Judge Prendergast recently said in his dissenting opinion in the Harris case, “This "was by the old semi-colon court,” by which I suppose he meant it was not of very high dignity, and not to be quoted as authority. It may be that from the Buster case, supra, to the present time, our courts have not regarded the Holland case very favorably, because they took the first opportunity possible to overrule it, and it has passed since that time to the present into “innocuous desuetude.”
Judge Harper, in writing the opinion for the majority, said: “We do not think the articles of the Code referred to call for or will bear such construction, but when the law says murder committed under given circumstances is murder in the first degree, and the court instructs the jury that if it was not committed in that way by the appellant to acquit, then to say that the verdict of guilty could be other than for murder in the first degree, seems to us an absurdity.” What may be an absurdity under the provisions of the Constitution and statutory enactment might open up a field of discussion about which there might be varied conclusions, but I have always been taught that under our form of government where a Constitution provides that a thing shall be done, and the Legislature follows the constitutional mandate and provides means of carrying out that mandate, that it can not be an “absurdity” or a “technicality.” In holding such things absurdities the sovereignty of q. great people is overlooked. What might be absurd to some men may be the exercise of the sovereign will of the people asserting their majesty. It might look absurd that an indictment for felony must be returned by a grand jury and that grand jury to be composed of twelve men, no more and no less, but it is the sovereignty of a republican form of government speaking through her people. We would hardly feel like being justified in saying that the great reserved rights and inhibitions in the Constitution are “absurdities,” when they form the basic principles of government. Article 1, section 10, of the Constitution, provides that the accused shall he tried by an impartial jury. Article 5, section 13, of that
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same Constitution provides, that the jury shall return the verdict, and it provides that twelve men, no more or no less, shall return the verdict in a felony case. Carrying out the mandates of these provisions the Legislature has defined in articles previously cited what a verdict is, and both the Constitution and the statutes interdict the courts from passing judgment upon a citizen of Texas until the verdict of the jury has been returned, assessing the punishment at incarceration in the penitentiary in felony cases. No power has been-conferred upon the courts to render verdicts; on the contrary, delegating that authority in the Constitution by the people to the jury is exclusive, and the courts would be powerless to render a verdict or change the verdict of a jury after it had been rendered. The court would be equally powerless to substitute his conclusion of what the verdict ought to be, or wording of that verdict after it had been rendered by a jury. As the jury returned the verdict into court, it shall remain. There is no power after the discharge of the jury to affect that verdict. Upon it the judgment must be formed and written, and the trial court nor this court or any appellate court in Texas would have any authority to modify, change or alter that verdict. The Legislature in obeying the mandate of the Constitution said that in murder cases the jury shall specify the degree of murder and assess the appropriate punishment to the degree after' it is ascertained. The verdict in this case does not comply with that statute. The trial court below after the jury was discharged reassembled them and sought to rectify it. Judge Harper merely holds that this act was void, but what was void in that court he sustains by a judgment of the majority of this court; that is, he makes the verdict sufficient under the statute, which under the Constitution and statutory enactment could not be made in the trial court.
Judge Harper uses the following language in the opinion: “We have often heard discussed technicalities of the law. The writer is of the opinion that while some of the language used in some of the opinions may be said to be technical; yet, there are really no technicalities in the law. A matter is either erroneous or not, and if erroneous, and it could have resulted in hurt or harm to the person on trial, the case should be reversed.” I wish to agree with a portion of the above quotation, that is, that there are no technicalities under our Constitution and written Codes. But he states the rule a little too strongly when he says that if “it could not have resulted in hurt or harm to the person on’ trial,” then it would be a technicality. Of course, the judge does not mean that in the full scope which the language would imply. If he intends to carry it to its fullest extent, that language might be construed to mean that an indictment was not necessary; that that instrument need not begin “In the name and by the authority of the State of Texas,” or conclude “against the peace and dignity of the- State.” These matters would not harm or hurt the defendant, because they do not bear upon his guilt, yet they are provisions of the Constitution, and no court has yet gone sufficiently far to say that they are either technicalities, ab
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surdities, or to be ignored or even suggest that they should be ignored. An indictment without these necessary statements would not be held valid by
this or any
other court. This is
not so
because it may hurt or harm the accused, but it is because it is the sovereign will of our people expressed in their Constitution. The same power that ordained these expressions in the Constitution created this court and the trial courts, and all the appellate system of courts.
I fully agree with Judge Harper in his statement that there are no technicalities in the law, constitutional or statutory.. In Bond v. State, 20 Texas Crim. App., 421, Judge White, in this connection, uses this language: “The remark of the court was, to say the least, inconsiderate if not improper; and the explanation made to the jury of the remark was, in our opinion, much more objectionable and improper than the remark itself, because it was a charge that the attorneys were endeavoring, in their effort to get bill of exceptions, to obtain some technical advantage in the trial. They were either entitled to the bill or they were not, and it was the duty of the judge either to allow or refuse it, just as the right of the matter might be, without discussing the motives which prompted counsel in asking its allowance. It is a right given by law to a party to reserve exceptions to any adverse ruling he may deem erroneous; and no right accorded a party by law, especially in a criminal prosecution, is in any manner a technical right or advantage when properly availed of. The rules provided by the State for the government of criminal trials, when she seeks to hold her citizens amenable, are not technicalities if he insists up on a compliance with them on the part of the State. They are
rights,
and it is the veriest misnomer to call them
technicalities.
There are no technicalities in criminal law under a Code practice, where every step of the procedure is clearly provided for and defined.” These expressions of Judge White were made in regard to remarks of a judge to attorneys of the accused, who were seeking to take a bill of exceptions. These matters were prohibited by the statute. If these are not technicalities, then I would be at a loss to understand how a verdict of a jury could be regarded as- a technicality. There are two great fundamental principles involved in the question pertaining to verdicts: first, the trial by jury, to pass upon the facts with which the court has no concern, and can not even convey his impression without violating the plain principles of the statute. The second, the court charges the jury the law, and by this the jury must be governed. So we have those two great cardinal principles or definitions, first, the court is the judge of the law and must instruct the jury; second, that the jury are the exclusive judges of the facts proved, credibility of the witnesses, and weight to be given the testimony, and they alone can find a verdict, and this whether it be on general issues or special issues. I do not understand, in the face of the plain provisions of the articles of the Code above mentioned, how it can be held that these provisions can be ignored by the verdict of the jury, which could be in that instance no verdict, because contrary to the statute, and then when insisted upon be told that
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it is “an absurdity.” If the verdict of a jury that consigns a man to the gallows or penitentiary, and to cells of infamy, is an absurdity, it would be a difficult matter to know what would be a right.
For the reasons indicated I respectfully enter my dissent from this affirmance.