King v. State

*687OPINION

RUSSELL, Judge.

Alan King and Rickey King appeal their convictions in the Circuit Court of Van Bu-rén County.

The threshold problem is that it is nowhere found or specified what they are convicted of. They were jointly charged by indictment with larceny, receiving stolen property and concealing stolen property, the charges being contained in three distinct counts. The property involved was a truck worth substantially more than $100.00, so that the range of possible punishment was three to ten years on each count.

The learned trial judge charged the jury:

“And, in the event you should find these defendants guilty of either the first or the second or the third count of the indictment, it is not necessary that you specify in your verdict the count upon which you so find the defendants’ guilt.
“In a case such as this, the State is not required to elect upon which count a conviction is sought. And, for this reason, you may return a verdict that you find the defendants guilty or not guilty as the proof may warrant under these instructions considered as a whole in the light of all the evidence that has been admitted to your consideration on trial.”

Later in the charge, in dealing with the form that a guilty verdict would take, the judge said to report “guilty as charged”.

The jury first reported a verdict of simply “guilty” and fixed one to three years. This verdict was refused, and they were reinstructed as to the range of punishment. The jury subsequently returned verdicts of “guilty”, and nothing more, as to each defendant, and set three to five years as the punishment for each. Even during an individual polling of the jury nothing more than “guilty” was ever reported. It is true that the trial judge, on one occasion as to each verdict, did articulate it “guilty as charged”. The trial judge stated, in pronouncing sentence: “It is the judgment of this Court, based upon the verdict of the jury finding you guilty as charged in the indictment, that you are sentenced * The technical record contains an entry labeled “Felony Judgement”, which recites that the indictment charged “larceny, receiving and concealing”; that the jury found each appellant guilty; and:

“It is, therefore, ORDERED and ADJUDGED by this Court according to the findings of the jury aforesaid that the defendant is guilty as charged, and for his said offense will be confined in the penitentiary of the State of Tennessee for not less than 3 years, nor more than 5 years”.

The only place in this record which attempts to reflect and record what crime the appellants were convicted of is the notation on the cover of the transcript of the technical record, which shows:

“Defendants found guilty of larceny, receiving and concealing and sentenced to not less than 3 years nor more than 5 years in State penitentiary”.

The fault with all of this is that larceny, receiving stolen property and concealing stolen property are separate and distinct offenses. Our Supreme Court held, in Jones v. State, 219 Tenn. 228, 409 S.W.2d 169 (1966), that receiving stolen property and concealing stolen property were distinct offenses, and that the venue for the two offenses was not necessarily the same. The same court held, in Deerfield v. State, 220 Tenn. 546, 420 S.W.2d 649 (1967), that one who was acquitted of larceny but convicted of the combined charge of receiving and concealing stolen property could not be held guilty of receiving when all of the proof was that he was the thief, but could be tried for and possibly convicted of the distinct offense of concealing stolen property.

The facts of the instant case have to do with the alleged theft of a truck. There is direct evidence that Alan King stole the truck, and circumstantial evidence that Rickey King drove him to the scene and followed him away. The record does not disclose that the truck was ever found. There is no proof that it was received by either of these appellants; but, since the *688truck apparently has never been found, and these two appellants were connected to its disappearance, there is that much evidence that they concealed or aided in concealing it.

It is obvious that the judgments against appellants are incomplete and too uncertain to be valid. Our Supreme Court, in Swanner v. State, 187 Tenn. 358, 215 S.W.2d 784 (1948), held, in a prosecution for assault with the intent to commit murder in the first degree, that a verdict, “we find the defendant guilty and fix his punishment at one year in the State Penitentiary”, carried into the judgment on which sentence was pronounced and wherein also no offense was specified, was void for uncertainty, because the sentence fit more than one offense (assault to commit second degree murder and assault to commit voluntary manslaughter) and the jury never convicted the defendant of any specific offense.

The precise question that we are dealing with is not assigned as error, although it was set out in the motions for a new trial. In briefing another point, however, the State cites authority for the proposition that a general verdict is proper and will be applied to any good count in a multi-count indictment. The case of Mendolia v. State, 192 Tenn. 656, 241 S.W.2d 606 (1951), is somewhat supportive of upholding the general verdicts in this case, but two factors distinguish it from the case at bar. In Mendolia one defendant, charged in. separate counts with being an accessory before the fact and an accessory after the fact, was found simply “guilty as charged”. However, the sentence set was compatible only with guilt as an accessory before the fact, and a judgment of conviction of accessory before the fact was in fact entered.

In the case at bar the appellants are not convicted of a crime certain. While the evidence does not support a conviction for receiving, it cannot be said that there is no evidence of concealing. The sentence pronounced is equally applicable to either.

We hold that the learned trial judge invited this error by his charge; and the uncertainty which we hold to be fatal is nurtured clear through the final judgment and into this court. There is no conviction of a specific crime for us to reverse. Nor is there any way that we can determine what the jury meant to convict of. It is not beyond possibility that they found guilt of receiving stolen property, since that offense was charged, even though unproved.

We see no alternative to a reversal and a remand for a new trial, and it is so ordered.

GALBREATH and DAUGHTREY, JJ., concur.