I respectfully dissent.
The majority reverses this case because no form of verdict was provided for the jury to find the appellant "Not guilty," and concluded this to be fundamental error as the court had instructed the jury that "suitable forms for your verdict are hereto attached." Appellant made no objection to the charge. This case is one of first impression among reported cases in Texas.
Initially, I believed as did the majority that this error was obviously reversible. However, I found no authority to conclude *Page 879 that the failure of the trial court to charge completely was error, absent objection by the appellant at trial.
The law is well settled that as to the verdict form where there is no objection or exception made to the same on the grounds of either omission or commission, any error is in effect waived. See Jones v. State, 74 Tex.Cr. 205,167 S.W. 1110 (1914); Womack v. State, 74 Tex.Cr. 640,170 S.W. 139 (1914); and see Jaynes v. State, 164 Tex.Cr. 147, 296 S.W.2d 934 (1956).
In Jaynes, the court found that failure to include a form of verdict to find the defendant guilty of simple assault (instead of aggravated assault), conviction of which was authorized in the court's charge, was not to be considered on appeal since no objection was made to the omission at trial.
A contrary result was reached where an omission was made, and the defendant not offered an opportunity to object (form submitted to jury by court with defense counsel given no opportunity to review). Clepper v. State, 162 Tex.Cr. 278, 284 S.W.2d 739 (1955). See also Riley v. State, 127 Tex.Cr. 267, 75 S.W.2d 880 (1934), where objection to an omission was made, but the omission was not corrected by the trial court.
There are two main cases where a court failed to include a proper instruction on the jury's duty to acquit, and thereby committed error. See Steagald v. State, 22 Tex.Cr. 464, 3 S.W. 771 (1886); and Giles v. State, 44 Tex.Cr. 435, 71 S.W. 961 (1903). These cases dealt with the court's burden to instruct properly on the law, and do not deal with the verdict form, and are thereby distinguishable.
In the instant case proper instructions on the jury's duty to acquit were contained, but the charge simply omitted a line for the foreman to sign for a verdict of "Not Guilty" if that had been concluded. Finding no requirement in the statutes or Code of Criminal Procedure for such detail in a verdict form, and as no objection to the form was made, and there being an instruction for the finding of acquittal otherwise, absent any prior holding that this error is fundamental, I would deny this ground of error and consider the others alleged.
An almost identical circumstance occurred in Bolden v.State, 489 S.W.2d 300 (Tex.Cr.App. 1973), and despite Judge Roberts' strong dissent, I believe the result obtained there controls here. In Bolden, supra, no form for the verdict "not guilty" was provided, but an instruction on "not guilty" was given and a place provided for the foreman to sign. The Court of Criminal Appeals found no reversible error.