The offense is negligent homicide; the punishment, confinement in jail for six months.
The complaint and information embraced separate counts charging negligent homicide of the first degree and negligent homicide of the second degree. The trial was before the court without the intervention of a jury. After hearing the evidence, the trial court merely found appellant guilty and assessed his punishment at confinement in jail for six months. Nowhere in the judgment was it stated whether the appellant had been found guilty of negligent homicide of the first degree or of the second degree. We are without the aid of a statement of facts. Appellant contends that the judgment is fundamentally defective in failing to state of which count in the complaint and information appellant was found guilty.
It is observed that the punishment upon a conviction for negligent homicide in either the first or second degree could have been six months confinement in jail. See Article 1237, P. C., and Article 1242, P. C. The punishment referred to in Article 1242, supra, relates to negligent homicide when the unlawful act "attempted or executed is known as a misdemeanor." Article 1243, P. C., prescribes the punishment for negligent homicide in the second degree when the act "intended is one for which an action would lie, but not an offense against the penal law." In the present case we are not concerned with the article last mentioned, as the complaint and information herein charged the negligent performance of a lawful act, as is described in Article 1231, P. C., and, further, the performance of an unlawful act made penal by law and called a misdemeanor. See Subdivision 1, Article 1240, P. C.
In Moody v. State, 105 S.W. 1127, it is shown that the complaint and information charged Moody with having committed an aggravated assault, which charge, by virtue of the statute, (Art. 694-695, C. C. P.,) included simple assault. The jury merely found Moody guilty, not stating whether of aggravated assault or simple assault, both offenses having been submitted in the charge. The punishment assessed was a fine of twenty-five dollars, which was the highest punishment for *Page 514 simple assault and the lowest for aggravated assault. This Court held that the verdict was uncertain to the extent that a judgment could not be based upon it. We quote from the opinion, as follows: "Where both issues are submitted, a jury should state of which degree they convict; and where, as in this case, the verdict may have been attributed to either degree, it is too uncertain, and the court cannot know for what offense the conviction was obtained, nor how to enter judgment."
In Lewis v. State, 217 S.W. 695, Judge Lattimore, speaking for the court, used language as follows: "The authorities all hold that, where the court submits to the jury different grades of an offense included by statute in the one charged in the information, and a general verdict of guilty is returned, fixing a punishment which might be given for more than one of the grades of offense submitted in the charge, such verdict will be bad; * * *."
It is the general rule that a verdict of conviction, in order to be sufficient, must "contain either in itself or by reference to the indictment or information all the elements of the crime of which the defendant is found guilty." 42 Texas Jurisprudence, 470. Bearing in mind that the judgment of the court herein is based alone upon the finding of the court that appellant was guilty — there being no jury — it would appear that whether such finding under the circumstances reflected by the record is sufficiently definite should be determined in the light of the judicial precedents construing the sufficiency of verdicts. Giving application to the principles controlling, it is manifest that this Court is in no position to determine from the finding of the trial judge herein whether appellant had been convicted of negligent homicide of the first degree or negligent homicide of the second degree. In Hampton v. State,244 S.W. 525, it was pointed out that negligent homicide in the first degree and negligent homicide in the second degree are fundamentally different. We quote Article 1231, supra, as follows: "Whoever in the performance of a lawful act shall by negligence and carelessness cause the death of another is guilty of negligent homicide of the first degree. A lawful act is one not forbidden by the penal law and which would give no just occasion for a civil action."
We quote Article 1238, P. C., as follows: "The definitions, rules and provisions of the preceding articles of this chapter, with respect to negligent homicide of the first degree, apply also to the offense of negligent homicide of the second degree, or such as is committed in the prosecution of an unlawful act, except when contrary to the following provisions." *Page 515
Article 1240, P. C., reads as follows: "Within the meaning of an 'unlawful act' as used in this chapter are included:
"1. Such acts as by the penal law are called misdemeanors; and
"2. Such acts, not being penal offenses, as would give just occasion for a civil action."
It is seen from the statutes above quoted that in negligent homicide of the first degree the act is lawful, whereas in negligent homicide of the second degree the act performed by the accused is unlawful. It is evident from a reading of the complaint and information that the two counts embraced therein charge a single transaction resulting in the death of I. P. Smith. There being a fundamental difference between the offenses charged, and there being but a single transaction, appellant could not be found guilty of both offenses. Of which offense he has been convicted we are unable to determine from the record before us. It therefore follows that the failure of the court to specify whether the conviction was for negligent homicide of the first degree or negligent homicide of the second degree renders the judgment uncertain to the extent that it can not be amended by this court, and especially would this be true in the absence of a statement of facts.
The judgment is reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.