Lewis v. State

The appellant was charged by information with the offense of aggravated assault. The information embodied the proposition that a deadly weapon was used, and also that serious bodily injury was inflicted. Upon the trial of the case the evidence was such as to present the theory of both aggravated assault and simple assault, and the court, recognizing this to be true, instructed the jury upon the law of both offenses. The verdict returned was as follows: "We, the jury, find the defendant guilty as charged in the indictment, and assess his punishment at a fine of $25." Prompt objection to the receipt of this verdict because of its indefiniteness was urged, and the action of the court in receiving it and in entering judgment upon it is properly brought here for review. The exact question was before the court in the case of Lee v. State, 41 Tex.Crim. Rep.. The sole question in that case was a sufficiency of a verdict assessing a fine of $25, against one accused of aggravated assault in a trial where the issue of both aggravated and simple assault was raised and submitted. The court held the verdict defective and uncertain, in that the jury failed to state of which offense the appellant was convicted, and it was not otherwise manifest or discernible from the verdict. A number of decisions to the same effect will be found collated in Branch's Annotated Texas Penal Code, page 938, Sec. 1595. See also notes in Vernon's Texas Criminal Statutes, vol. 2, under Art. 771, page 580.

Under the rule thus declared, the verdict in the instant case is defective and should not have been received. The judgment of the lower court is reversed, and the cause remanded.

Reversed and remanded. *Page 137

ON REHEARING. December 17, 1919.