Appellant was convicted of assaulting and falsely imprisoning Robert Cerf, in concert with three others, while two of his (appellant's) companions were masked. The punishment was assessed at confinement in the penitentiary for twelve years.
Robert Cerf, the injured party, was returning to his home when an automobile occupied by one Hassell stopped near him. Hassell invited Cerf to enter the car. After the car had proceeded for some distance, Jimmie Nash and Oliver Clapp, who were masked, jumped on the running board of the car and one of them directed a pistol at Cerf. They then carried the injured party to an apartment in Dallas, where he was detained until his father paid a ransom of $15,000 for his release.
Hassell testified that it was at the suggestion of appellant that the crime was perpetrated; it being agreed that they would kidnap the injured party and hold him for ransom, and, further, that a division of the money would be made by the perpetrators of the crime. The father of the injured party responded to an unsigned letter written to him by Hassell, advising him to deliver $15,000 to a certain place in Dallas if he desired the release of his son. This letter contained a threat to do violence to the son if the ransom was not paid. The agent of the father was taking the money to Dallas when he was held up and robbed. Later this money which came into the possession of appellant was divided between the parties, and the injured party was released from custody. The state introduced in evidence appellant's written confession in which he admitted his guilt. Appellant did not testify on the trial of the case. *Page 615
Section 5 of chapter 63 of the Acts of the Thirty-ninth Legislature, Regular Session (Vernon's Ann. P. C., article 544e), reads as follows: "If any two or more persons acting in concert, or aiding and abetting each other, when either or all of whom are masked, or in disguise, shall assault or shall falsely imprison any other person, each of such persons so offending shall be guilty of a felony and upon conviction shall be punished by confinement in the penitentiary for any term of years not less than five. The terms 'masked' or 'in disguise' used in this article mean that such person by artificial means has so changed or obscured his usual appearance as to render his identification impossible, or more difficult than it would have been if such mask or disguise had not been used." It was under the foregoing provision that the indictment was drawn. It is appellant's contention that the statute above set out offends against the provisions of article 6 of our Penal Code; his position being that the mask or disguise is not described by any standard that is certain. The indictment alleges that appellant and his companions were masked and in disguise. The exact question presented here was before this court in Dellinger v. State, 115 Tex.Crim. Rep.,28 S.W.2d 537. In ruling adversely to the contentions of the appellant in Dellinger's case, we asid: "In Anderson v. State (Texas Crim. App.), 21 S.W.2d 499, we upheld that part of section 3 of the act (Vernon's Ann. P. C., 454c), which denounces as an offense the disturbance of the inhabitants of a private residence by a masked person, and said that the term 'masked' has a well defined and commonly understood meaning. Giving effect to such holding, we are of the opinion that that part of the statute which denounces an assault or false imprisonment while the offenders are masked definitely and clearly defines an offense. It is unnecessary to express an opinion as to the validity of the remainder of the section. The indictment charges that the offense was committed by the parties while they were masked, and the proof supports the allegation."
The indictment charged that "Currie W. Caldwell * * * then and there acting in concert with Jimmie Nash, Oliver Clapp and Charles R. Hassell, and each of them, and the said Currie W. Caldwell, Jimmie Nash, Oliver Clapp and Charles R. Hassell, and each of them, then and there aiding and abetting each other, and the said Jimmie Nash and Oliver Clapp, and each of them, being then and there masked and in disguise, did then and there unlawfully assault and falsely imprison Robert Cerf; and by means of said assault and by means of actual violence to *Page 616 the person of the said Robert Cerf, and by the exhibition and use of, a pistol, did then and there wilfully and without authority of law, and against the consent of the said Robert Cerf, detain the said Robert Cerf, and did then and there and thereby, unlawfully and wilfully restrain the said Robert Cerf from removing from one place to another, as he, the said Robert Cerf, might see proper." In his motion to quash, appellant averred that the indictment was duplicitous, in that two offenses were joined in the same count.
The opinion is expressed that the indictment charges two offenses in the same count. The indictment, however, is in substantially the same form as that found in the case of Dellinger v. State, supra. There a motion to quash the indictment on the ground that it was duplicitous was overruled by the trial court. Thereafter in Dellinger's case, the court submitted in the charge the offense of assault while the offender was masked, thereby limiting the state to that offense for a conviction. It appeared in Dellinger's case that the transaction was continuous. There was no cessation in the assault from the moment it began until that of its termination. The blows that were inflicted upon the injured party and the seizure and detention of his person constituted an assault. The indictment in the form in which it was written was the means of bringing into the case no evidence that was not admissible under the averment charging an assault. While it was not conceded in the opinion of the court that the indictment was duplicitous, it was held that if the, indictment was duplicitous, the refusal of the court to quash, under the circumstances, was made harmless by the fact that the court, in submitting the case, elected to charge the jury only on the offense of assault while masked. In the opinion on motion for rehearing in Dellinger's case, Presiding Judge Morrow used language as follows:
"The most that can be urged against the indictment in the present instance is that by the averments therein there was nominally carved two offenses out of a single act or transaction, a fault (if it be a fault), which was corrected by the abandonment of that part of the indictment which charged the alleged offense of imprisonment; and in the charge restricting the state's right to a conviction to that part of the indictment alone which charged on assault. If there was error in refusing to quash the indictment (which is not conceded), it was made harmless by the forced election to rely upon the charge of assault."
In the present case the transaction was continuous. There *Page 617 was no cessation in the assault from the moment it began until that of its termination. The exhibition of a pistol by one of appellant's companions, and the seizure and detention of the injured party's person constituted an assault. The indictment in the form in which it was written was the means of bringing into the case no evidence that was not admissible under the averments charging an assault, or that charging false imprisonment while masked. Under the circumstances, we are unable to reach the conclusion that the mere fact that the court failed to sustain a motion to quash would warrant a reversal of the judgment. However, appellant did not content himself with presenting a motion to quash, but followed the matter up by requesting the court, after the conclusion of the evidence, to require the state to elect as to the offense for which a conviction would be sought. This motion being overruled, appellant objected to the charge of the court on the ground that it submitted two offenses to the jury. After the jury had returned a general verdict finding him guilty as charged in the indictment, and assessing his punishment at twelve years' confinement in the penitentiary, appellant, in his motion for a new trial, urged that he had been convicted of two offenses. In entering judgment the court applied the verdict of the jury to the single offense of assault by a person masked.
As we have heretofore stated, we are of the opinion that the section of the statute under which appellant was convicted defines two offenses, and that the indictment in a single count charges two offenses. At the time of the enactment of the statute under consideration, article 1138 of the Penal Code defined an assault. Article 1169 contained the definition of false imprisonment. In other words, two articles defined separate and distinct offenses. It might be that false imprisonment involves an assault; it being the announcement of the decisions that an illegal arrest is regarded in law as a continuous assault of an aggravated nature. Dellinger v. State, supra, and authorities cited. However, we do not think that an assault necessarily involves the commission of acts constituting false imprisonment. It is apparent that the statute condemns the commission of an assault upon another by two or more persons, acting together, while masked, and also that another distinct and complete offense is defined, that is, false imprisonment of another by two or more persons acting together while masked. Undoubtedly the Legislature, in passing article 454e, under which this prosecution proceeded, took as its basis the two separate and distinct misdemeanors heretofore named, towit, assault and false *Page 618 imprisonment, and enhanced the penalty for the commission of such offenses when it was shown that the offender was masked.
In submitting the case to the jury the court, in one paragraph of the charge, gave the statutory definition of assault, and subsequently, in another paragraph, set forth the statutory definition of false imprisonment. Thereafter, in applying the law to the facts, the court instructed the jury, in substance, to convict appellant if they believed from the evidence beyond a reasonable doubt that he, acting with his companions, committed an assault, as that term has been defined in the charge, upon Robert Cerf, or if he falsely imprisoned the said Cerf, as false imprisonment had been defined in the charge, while appellant's companions were masked. The court said in the charge: "Then if you do so believe beyond a reasonable doubt you will find the defendant Currie Caldwell guilty of committing an assault while masked or in disguise as charged in the indictment, or falsely imprisoning Robert Cerf, while masked or disguised, as charged in the indictment, and you will assess his punishment at confinement in the state penitentiary for any term of years not less than five." The verdict was general, finding appellant guilty as charged in the indictment, and assessing the penalty at 12 years, which was more than double the minimum punishment.
It is the general rule that the accused can not be convicted for two felonies on one trial under one indictment, and that it is a matter of such fundamental error as calls for a reversal. Knott v. State, 93 Tex.Crim. Rep., 247 S.W. 520, and authorities cited. It is also the rule that a general verdict may be applied to whichever of plural counts in the indictment is supported by the proof. Knott v. State, supra. But in the present case the general verdict could not be applied to the offense of assault because of the fact that appellant's punishment was assessed at more than the minimum. Goldstone v. State, 114 Tex.Crim. Rep., 25 S.W.2d 852; Knott v. State, supra; Horn v. State, 117 Tex.Crim. Rep., 35 S.W.2d 145.
As heretofore pointed out, if the court had submitted one offense to the jury, the refusal to quash the indictment, under the circumstances, would not have brought about a reversal of the judgment. Upon another trial the court should submit only one offense in the charge to the jury.
The judgment is reversed and the cause remanded.
Reversed and remanded. *Page 619
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.