This prosecution was upon an information containing only one count, which charged an aggravated assault.
The court below, in his charge to the jury, submitted both aggravated assault and simple assault. The verdict was as follows: "We, the jury, find the defendant guilty as charged in the information, and assess his punishment at a fine of twenty-five dollars."
In an able motion for rehearing, appellant challenges the correctness of our affirmance of this case, and our holding that the verdict was sufficiently certain, and insists that such verdict should have specifically named the degree of assault of which appellant was found guilty. An examination of our statutes, as found in Chapter 6, Title 8, Vernon's Code of Criminal Procedure, discloses that Article 771 thereof directs that 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) and guilty of any degree inferior to that charged in the indictment or information. Article 772 of said chapter, names the offenses which, if charged in an indictment or information, will be held to include similar offenses of inferior degree. It is clear that while the pleading charged only one offense eonomine, the court may charge the jury every inferior degree embraced therein, and just here is where the conflict, if any, has arisen. In the cases cited by appellant as holding the opposite to the decision in this case, upon examination it will be found that in most of them the court submitted in his charge, the different degrees of the offense, and the jury, by their verdict, found the defendant guilty, or guilty as charged, frequently assessing a punishment which might be inflicted for either the higher or lower degree submitted. In such cases this court has invariably held the verdict uncertain, and we are in entire accord with such holding. Such are Kinchen's case,80 Tex. Crim. 106, 188 S.W. Rep., 1004; Williams' case,44 Tex. Crim. 316; Lee's case, 41 Tex.Crim. Rep.; Moody's *Page 139 case, 52 Tex.Crim. Rep.; Winzel's case, 47 Tex. Crim. 267 :
The reasoning resulting in the holdings in these cases, is apparent, for it is impossible to tell from the form of verdict in said cases, whether the intention of the jury was to find the accused guilty of the aggravated assault charged by the court, or the simple assault charged by the court, or the assault charged in the information.
We are also in accord with another rule which prevails in our practice, and which is, that the jury are presumed to have expressed their finding with reference to the charge of the court, unless in their verdict they state something which shows that such was not their intention. Vincent v. State, 10 Texas Crim. App., 330; Hutto v. State, 7 Texas Crim. App., 44, and authorities cited.
So it must follow that when the information or indictment contains but one count, and the verdict recites that the accused is guilty as charged in the information or indictment, and a punishment is fixed which is allowed by law for either of the offenses submitted by the Court in his charge, we will look no longer to the charge of the court to ascertain the offense, or degree of offense found by the jury, but will look to the indictment or information referred to in the verdict in order to ascertain the intendment of the jury.
We have found no case in this State in which this Court has held otherwise than as we have just stated, but in every instance where the question has been presented to this Court, it has held such verdict to be sufficiently certain. In Cohea v. State, 11 Texas Crim. App., 153, a theft case, objection was made to the verdict of "guilty as charged in the indictment," because theft is of different degrees, and the verdict failed to specify the degree. Judge Hurt held that the verdict found the accused guilty of the highest offense charged in the indictment, and that it was not necessary for the verdict to name the offense or degree; that this is necessary only when the accused is found guilty of a lesser degree than that named in the indictment.
In Burgess, v. State, 33 Tex.Crim. Rep., this court held a verdict finding the accused guilty as charged, in the indictment not to be vague and indefinite, but on the contrary, to be very certain.
In the Williams case, 5 Texas Crim. App., 226, the form of the verdict was that the jury found the accused guilty as charged in the indictment. After discussion and citation of authorities, this Court said: "From these authorities, we are of the opinion that the verdict in the present case leaves no room for doubt that the jury have clearly expressed an intention to find the accused guilty of the crime charged in the indictment, and to assess his punishment in terms of law."
In the Nettles case, 5 Texas Crim. App., 386, this Court says: "It seems that in ordinary felonies, including degrees, whilst it would be eminently proper — as in fact it might be in all criminal cases *Page 140 of whatever grade — for the jury to name the offense of which they find the accused guilty, yet they are not positively required to do so, and it may only be proper for them to do so when the party is found guilty of a lesser offense than that charged in the indictment."
In the McGee case, 39 Tex.Crim. Rep., JUDGE HURT, who was undoubtedly one of the greatest lawyers and logicians who ever sat on this bench, in one of the last opinions handed down by him before his retirement to private life, stated what we believe to be the correct rule in cases of verdicts of this character, and makes it too clear for argument that a verdict which finds the accused guilty as charged in the indictment, sufficiently sets forth the finding of the jury, both as to the offense, and the degree of offense of which the accused has been convicted. This, of course, is applicable to a case in which the indictment contains only one count. The entire similarity of the McGee case with the one under consideration, is apparent from a reading of the opinion in that case. We quote from it as follows:
"Appellant were charged with rape upon Martha Green. The jury returned the following verdicts: `We the jury find the defendant Prada McGee guilty as charged in the indictment, and assess his punishment at confinement in the State penitentiary for a term of fifty years. T.A. Smith, Foreman." And: `We the jury find the defendant Maryland Fuller guilty as charged in the indictment, and assess his punishment at confinement in the State penitentiary for a term of fifty years. T.A. Smith, Foreman.' The court submitted to the jury rape and assault to rape. The punishment for assault to rape is confinement in the penitentiary for any term not less than two years; the punishment for rape is death, or confinement in the penitentiary for life, or any term of years not less than five. Fifty years confinement in the penitentiary is a legal punishment for either offense. Rape includes an assault with intent to commit rape. Now, the contention of appellant is that the above verdicts are insufficient to support the judgments; that, as fifty years may be the punishment for assault to rape, and as rape and assault to rape were submitted to the jury, the verdicts should have stated for which offense the defendants were convicted. This proposition is absolutely correct. But the question is whether the verdictsfail to so state. Article 751, Code of Criminal Procedure, 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.' The question is not before us whether the jury convicted the defendant of a lesser degree than that charged. The question is whether the jury convicted the parties of the degree charged in the indictment in this case. What was the higher degree charged in the indictment? Evidently it was not an assault with *Page 141 intent to rape, but was rape. Now, how do the verdicts read? `We the jury find the defendant guilty as charged in the indictment." The charge in the indictment was for rape. Assault with intent to rape was charged in one sense, which was by inclusion. It evidently was not charged directly, for, if so, article 751 could never have had any practical operation. This article expressly provides that the accused can be convicted of an inferior degree to that charged in the indictment. Now, if this inferior degree was not charged in the indictment, either directly or by inclusion, the parties could not be convicted legally at all, because a conviction cannot be legal without allegations. This article settles the question. It draws the distinction clearly between the charged degree, — that degree which is set forth in the indictment and that degree of offense which is charged by inclusion. If assault to rape was charged in the indictment, within the meaning of this article, so was aggravated assault and simple assault, and so was an attempt to rape. If, then, these degrees were all charged, within the meaning of this article, to give the article practical effect the accused could be convicted of some offense not charged at all. To restate: We understand article 751 to draw a distinction between the degree which is charged directly and affirmatively in the indictment and the lesser degrees of the same offense, which are charged by inclusion. This article says that in substance by stating: `But guilty of any degree inferior to that charged in the indictment or information.' Now, the verdicts in this case find the defendants guilty as `charged in the indictment:' and when we look to the indictment, nothing is affirmatively charged except rape. While it is true, he is charged with assault to rape, aggravated assault, etc., by inclusion, yet that manner of charging is not that which is meant by article 751, but it means directly and affirmatively charged. The verdict is the same as if it were, "We the jury find the defendant guilty of rape, because it says that which is the equivalent thereto, `We the jury find the defendant guilty as charged in the indictment,' which is rape, and nothing else. Let us suppose that the appellants on another trial should interpose a plea of acquittal of rape. Their plea would be worthless. Why? Because the jury have convicted of rape, the offense charged in the indictment. We do not wish to elaborate this question any further."
We are not disposed to overrule any of the cases cited by appellant's counsel, believing them to be correct holdings, under their facts but we do not think any of them holds contrary to the entirely different principle and reasoning upon which our decision in this case rests.
Believing the opinion affirming this case to be correct the appellant's motion for rehearing will be overruled.
Overruled. *Page 142