Appellant was convicted upon an. indictment containing two counts, the first for theft, and the second for receiving stolen property knowing it to have been stolen.
We here copy in full the judgment of the court, as follows: ££ On this tenth day of February, A. D. 1886, this cause coming on to be heard, came the State of Texas, by her county attorney, and announced ready for trial. Thereupon came a jury of good and lawful men, to-wit: L. W. Kelley and eleven others, who were selected, empaneled, and sworn according to law, and the indictment being read, the defendant to the charge therein of theft of a yearling neat cattle, £ plead not guilty,’ and the jury, after hearing the evidence, argument of counsel, and charge of the court, retired, in charge of the proper officer, to consider of their verdict, and after due deliberation returned into open court, the defendant being present, the following verdict, to-wit: ‘ We, the jury, find the defendant guilty as charged in the second count of the indictment, and assess his punishment at two *538(3) years’ confinement in the penitentiary. L. W. Kelley, foreman.’ Wherefore it is considered by the court that the defendant is guilty (of the theft of a yearling neat cattle) as charged in the indictment, and as found by the verdict of the jury. It is therefore ordered, adjudged, and decreed, by the court, that the defendant, Thomas Gaither, be condemned to imprisonment in the State penitentiary for a period of two years, in accordance with the verdict of the jury and judgment of the court, and that he be remanded to the custody of the sheriff of Falls county, and by him to be safely confined in the common jail of Falls county to await the further orders of this court.”
The sentence of the court followed the terms of this judgment, and appellant was condemned to imprisonment in the penitentiary for the offense of “the theft of a yearling.” It is manifest that the judgment and sentence are not supported by the verdict. The verdict found the defendant guilty on the second count of the indictment, which was a charge for receiving stolen property, knowing it to be stolen. .The judgment and sentence were for theft of an animal as charged in the first count of the indictment.
It is now^well settled in this State that theft and receiving stolen property, knowing it to be stolen, are two separate, distinct, and specific offenses, and that under an indictment for theft, a party can not be convicted of receiving stolen property, and vice versa. (Brown v. The State, 15 Texas Ct. App., 581, and authorities.)
One of the requisites of a final júdgment, as declared by our statutes, is that the said judgment must show, in the case of a conviction, that it is considered by the court that the defendant is adjudged to be guilty of the offense as found by the jury; or, in case of acquittal, that the defendant be discharged.” (Code Crim. Proc., Art. 791, subdiv. 9.) This mandate of the law has not been complied with in the judgment rendered in this case. In a felony case the trial must be by jury, and it is the verdict of the jury which gives validity and effect to the judgment as to the character of the crime which has been committed; and where the jury have determined the crime upon the special issues fairly submitted to them by the court, it is well settled that the court can not look beyond the verdict to any fact apparent in the record to aid the judgment. (Ledyard v. Brown, 27 Texas, 393; Raines v. Calloway, Id. 679.) In this case there is a fatal variance between the verdict and the judgment and sentence, *539and the latter are virtually without a verdict, which is absolutely essential to their support, and consequently they cannot be permitted to stand.
Another fatal objection to this conviction is that the verdict of the jury as rendered, even if the judgment had been in accordance with said verdict, can not stand, because the judgment as above set forth shows that the defendant never pleaded to the second count in the indictment, that is for “receiving stolen property.,” of which said verdict finds him guilty, but, on the contrary, said judgment expressly declares that “ the indictment-being read, the defendant to the charge therein of theft of a yearling neat cattle, plead not guilty.” If defendant had pleaded generally “not guilty” to the indictment, that would have been sufficient to put in issue all the counts charged in the indictment. But a plea as to one count alone, specifically stating the count, must be held as intending to, and as in fact, only embracing said count, and especially when the other counts charge separate and distinct offenses, as in this instance. It is a rule too well established to require a citation of authority at this late day that unless the record on appeal shows affirmatively that a defendant on trial of a criminal offense pleaded to the charge preferred against him, and upon which the prosecution is predicated, a judgment of conviction will be set aside, because where there is no issue for the jury to try, or for the court to determine, there being no plea to the second count of the indictment, the verdict rendered by the jury was upon an issue that had never been made by a plea, and, consequently, had the judgment been in accordance with the verdict, it would have been set aside for this reason also.
Looking to the conduct of another trial of this case, we are of opinion that the court erred in excluding the testimony proposed to be elicited on cross examination of the State’s witness It. W. Johnson, as shown by defendant’s second bill of exceptions. Johnson was the alleged owner and prosecutor. On his examination in chief he stated that, about three or four weeks after he had recovered the stolen yearling, he met appellant and one Mark Harwell, and had a conversation -with them about the yearlings. The defendant’s counsel asked him to state the conversation, to which the State’s counsel objected, because the conversation was brought about by defendant, and showed that it was not the first time that defendant had learned of the charge1 against him, and that the declarations made by defendant in *540said conversation would be self serving, and therefore inadmissible. The court excluded the testimony. This ruling, we are of opinion, was erroneous. The State’s witness had detailed an act of the defendant, to-wit, “that Gaither had met witness in the road near his residence, had introduced himself and Mark Harwell to witness, and that Gaither, this appellant, began the conversation by asking about the yearling that had been recovered by witness, the subject not having been mentioned by witness.”
Opinion delivered June 19, 1886.The statutory rule upon the subject is that when a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood, or explain the same, may also be given in evidence. (Code Crim. Proc., Art. 751; Davis v. The State, 3 Texas Ct. App., 91; Greene v. The State, 17 Texas Ct. App., 395; Harrison v. The State, 20 Texas Ct. App., 585; Rainey v. The State, Id., 470.)
There are other irregularities in the record which we do not deem it essential to notice, save by way of remark that other material errors complained of and not discussed by us are of a character deemed not likely to occur on another trial.
For the errors above discussed, the judgment is reversed and the cause is remanded.
Reversed and remanded.