Appellant was convicted of theft from the person. The jury returned a verdict of guilty, assessing his punishment at two years in the penitentiary and recommending a suspended sentence.
The judgment of the court shows this verdict as returned by the jury. In rendering the judgment the court, however, disregarded the recommendation by the jury for suspended sentence and entered a judgment against him for two years in the penitentiary. This seems to have been predicated upon the idea on the part of the court that appellant had not filed a plea for a suspended sentence. A bill of exceptions recites that the verdict was returned as indicated, and the court accepted the verdict and discharged the jury. This occurred on the 8th of July. On the 10th appellant filed a motion to set aside the verdict and judgment and to grant a new trial, and on the 15th of July his amended motion was filed asking that the verdict and judgment be set aside. This motion for a new trial sets out at length a great many things, among them affidavits signed by a number of the jurors, and in addition the jurors were summoned by the court on motion for new trial and their evidence is made also a part of the motion for new trial and bill of exceptions. The bill of exceptions is approved, but qualified by the judge to this effect, "That after the jury had been out for *Page 114 several hours they came in and presented to the court the following written question: `If we convict the defendant and assess his punishment at confinement in the penitentiary for two years, can we recommend a suspension of his sentence?' (signed) T.S. Freeman, foreman, to which the court answered officially in writing on the same piece of paper the word `No.' In view of what took place as above set out it is inconceivable how any juror could have been misled by alleged representations of other jurors."
The jurors believed they had the right to allot a suspension of his sentence as the law left that matter exclusively to their decision. If it be held that the defendant could not get the benefit of the suspended sentence without his sworn application, then the jury returned a verdict which they were not authorized to do, and the court did not have any authority to receive it. An illegal verdict is a paradox. If illegal, it is not to be received or enforced. If he did not like the verdict and thought it was illegal, he should have sent the jury back and required them to find a proper verdict. Rev. C.C.P., 1911, art. 773. He informed them of the fact that they could not find in favor of the suspended sentence, and yet they did so over his written instruction. If the verdict is illegal, then no judgment could be rendered thereon. Such action was serious misconduct on part of the jury, for which they were not even reprimanded by the court. The defendant is made to suffer it. If the verdict is illegal, the court can not legalize it by receiving it. So from any viewpoint a judgment could not be entered upon that verdict. If we go to the affidavits and the testimony, and the bill of exceptions, it is not debatable that the jury did not intend to convict under any circumstances unless they could award the suspended sentence. This bill of exceptions also shows that they stood seven for acquittal and five for conviction, and after discussing the matter among themselves, in the face of the charge of the court, they thought they had the right to give him the suspended sentence, and if they had not, in no event would they agree to punish. They agreed and compromised on that verdict with the suspended sentence, otherwise it is self-evident from the bill of exceptions that but for such agreement no verdict would have been rendered in the case convicting appellant. This is such a verdict even from that viewpoint as ought not to be received by the court or permitted to stand as basis for the entered judgment. Article 774 of the Revised Code of Criminal Procedure, 1911, provides, if the jury refuse to have the verdict altered they shall again retire to their room to deliberate, unless it manifestly appears that the verdict is intended as an acquittal, and in that case the judgment shall be rendered accordingly discharging the defendant. The jury did not refuse to change their verdict, for they were not required so to do by the court, nor did the court call their attention to it. Article 773 provides that, if the jury find a verdict which is informal, their attention shall be called to it and with their consent the verdict may, under direction of the court, be reduced to proper form. There was no attempt by the court to have the verdict reformed or changed *Page 115 as required by this statute. The verdict was brought in, received by the court, the jury discharged and judgment entered upon it as brought in, except the judgment omitted the suspended sentence recommendation. Upon this the court entered judgment and sentence against the defendant in the face of the verdict brought in by the jury. It is true the jury disregarded the court's instruction, but it is equally true that they determined not to convict him so he could be punished, and they further determined that they purposed to suspend his sentence and see that he was not punished in the penitentiary, and this in the face of the emphatic charge of the court. The judge can not render a verdict, or any portion of it, nor enter a judgment upon a verdict except as the jury returns it. He must either take the verdict as it is, or send the jury back to agree in accordance with the law. From any viewpoint this judgment ought not to stand as I understand the law. This was not an attack on their verdict by the jury as my brethren seem to think. It was a direct refusal to obey the court's instruction. It comes within the rule, and strictly so, of misconduct, expressly and wilfully done, as manifested by the court's qualification. Whether their affidavits were or not filed with the new trial motion, and despite the facts set out in the bill of exceptions, this misconduct is fully verified by the judge, if they had no legal right to recommend suspended sentence. It is wholly unnecessary to go to these affidavits and testimony adduced thereunder to prove such misconduct. The verdict was rendered against positive and unqualified instructions of the judge not to return such verdict, yet the judge received it in the face of all this and discharged the jury even without a reprimand, and substituted a verdict as basis for a judgment the jury did not return. He knew of this misconduct when he received the verdict, because plainly and positively specified by the jury in defiance of his written charge. What is a verdict of a jury anyway? This is answered by the statute, article 763, C.C.P., 1911, as follows: "A verdict is a declaration by a jury of their decision of the issues submitted to them in the case, and it must be in writing and concurred in by each member of the jury." It must be a jury of twelve members — no, more and no less. C.C.P., 1911, art. 764, Const., art. 5, sec. 13. The judge is not a juror and can not render a verdict, or any part of it, in a felony case, nor can he substitute his judgment for the verdict of a jury. He has power to cause a correct and proper verdict to be returned, and, if such verdict is not rendered, he can retire the jury till they agree on such a verdict. He can not substitute his judgment, however, for an incorrect or illegal verdict.
My brethren hold, under the authority of Barnett v. State, 170 S.W. Rep., 143, and Spear v. State, 71 S.W. Rep., 201, this judgment ought to be affirmed, and they do affirm it. It will be noticed those two cases, however, do not discuss the two statutes I have mentioned. They were not even noticed in those opinions. The fact that those decisions were by a unanimous court does not cure the failure to notice articles 773 and 774 of Code of Criminal Procedure, supra. I do not evade *Page 116 my responsibility for the two cases cited by majority, but for that reason I am not willing to be further responsible for the error committed in those cases. The court ought to be correct in deciding the law, rather than consistent in error. The judgment ought not to be sustained, but it ought to be reversed. I respectfully dissent.