Conviction for theft; punishment, two years in the penitentiary for each appellant.
There is no statement of facts in this record. We are asked by appellants in their brief to reverse this case upon the showing made in the only bill of exceptions reserved. Said bill recites that by agreement of all parties the cases of these appellants were consolidated and they were jointly tried, — the transactions being the same, and the charges identical.
There is nothing before us supporting any contention that *236one of these appellants was guilty and the other not; nor that one of them was shown to be new in crime and the other an old offender; nor that one was over-persuaded, etc., etc. As far as we know, or can tell from the record, these appellants are and were throughout equally concerned and equally guilty-Appellants’ only complaint in said bill of exceptions is that the court gave to the jury but two forms of verdicts. No exceptions were taken to the court’s charge when given, nor to the giving of the forms of verdicts coincident with the giving of the charge. The complaint seems to be of the fact that the court merely told the jury that if they found defendants not guilty, the form of their verdict would be: “We, the jury,. find the defendants not guilty. ________________Foreman,” and if they found them guilty, the form of their verdict should be: “We, the jury, find the defendants guilty of ^sJememiÍÍtheft and as~ sess their penalty at_________ ____________________________Foreman,” telling the jury in case of verdict of guilty to erase the offense of which they did not find the parties guilty, and write in the blanks the punishment, and sign through their foreman.
There is no question but that the court in his charge had told the jury that they could convict one of said defendants and. acquit the other; nor of the fact that the court told them that they could give to either of said defendants, — in case both were found guilty, — a penalty different from that given the other. Nor is there any question but that the court failed to give to the jury forms to fit each possible verdict, — as seems to have been held proper in all the cases. Harris v. State, 106 Texas Grim. Rep., 539, and cases cited; section 657, Branch’s Annotated P. C. However, the bill of exceptions found in the record wholly fails to make evident, from any of its recitals, that the testimony suggested or made probable the fact that, the jury should or in reason might have found differently as to one or the other of the accused, in case appropriate forms so suggesting had been given. Appellant’s complaint is not supported by any showing of probable injury.
We must accord to juries intelligence and reason until the contrary is shown by some action or deed set out in some fact, showing. In his charge the trial court told the jury that if, in their judgment, it was deemed proper, they could find one. of the defendants guilty and the other not; and that they might, in their discretion assess different penalties. We must believe-the jury followed this charge in the absence of a statement of facts, or some showing in the bill of exceptions suggesting *237facts from which a reasonable conclusion might arise that one of these men should have been acquitted, or given a penalty-different from that accorded the other by the jury. In the condition the record appears before us we are forced to the conclusion that no injury is shown, and that in assessing the same penalty the jury did right. We do not reverse cases upon complaints except they be well founded on facts or law.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
Hawkins, J., absent.