Appellant was convicted of the offense of theft and his punishment was assessed at confinement in the state penitentiary for a term of ten years.
This is the second appeal in this case. The opinion rendered by this court on the first appeal may be found reported in (146 Tex. Crim. 390) 176 S.W.2d 172. We reversed the judgment in that case on the ground of a defective count in the indictment under which he was convicted. That indictment contained two counts: The first charged that the appellant, James Melvin Blevins, did unlawfully and fraudulently take 588 diamond and wedding rings, marked with the Harry Ben Frackman Co. Jewelry stamp, and being of the total value of $8,792.58; that the same was the corporeal personal property of E. F. Burger, etc. For the purpose of enhancing the punishment, it was further charged in a separate paragraph that appellant had been theretofore duly and legally convicted in the District Court of Tarrant County of an offense of like character, to-wit; theft of an automobile over the value of fifty dollars. The second count charged him with the theft of the identical property as that charged in the first count, and further charged two prior convictions for offenses of like character. The jury found him guilty under the first count, from which judgment he appealed *Page 4 to this court. We held the first count insufficient to charge an offense and ordered that the prosecution be dismissed. Thereafter, the grand jury re-indicted him and properly charged him in due form with the theft of 588 diamond and wedding rings from E. F. Burger, and further charged that he had theretofore been convicted in the District Court of Tarrant County with an offense of like character, to-wit: Theft of an automobile over the value of fifty dollars.
On his trial in the instant case, appellant filed a plea of former jeopardy which was in due form, but the trial court declined to sustain the same, and his conviction followed. He contends here, as he did in the trial court, that inasmuch as he was convicted at the former trial upon the first count in that indictment, which was defective, and that the jury acquitted him upon the charge of the primary offense in the second count, his plea of former jeopardy should be sustained. We are not in accord with his contention. It is true that the State, in the former indictment, charged him in each count with the primary offense of the theft of the jewelry, and in addition thereto, charged in the first count, one prior conviction, and in the second count, two prior convictions. Both counts were submitted to the jury who found him guilty under the first count without any finding as to the second count, which was an implied acquittal, not of the primary offense because they expressly found him guilty of the primary offense under the defective count. To hold otherwise under the peculiar facts of this case would bring the jury's action on both counts in conflict with each other. The verdict of a jury, as well as the law, must be given a reasonable construction so as to avoid, if possible, any conflict or contradiction.
While we have been unable to find any decision by the courts of this state involving the question here presented, we do find a decision rendered by the Supreme Court of Missouri in the case of State v. Keating, 122 S.W. 699, which is analogous to the instant case. In that case the court decided the question adversely to the appellant and in consonance with the opinion here expressed. However, if we should hold that the implied acquittal is apparently in conflict with the expressed finding of the jury, still their positive and expressed finding, which excludes the presumption of his acquittal of the primary offense, must be given effect over the implied finding. Moreover, the jury may have concluded that he was guilty of the primary offense charged in the second count of that indictment, but failed to find that he had theretofore been twice convicted of an offense of like character, as charged in the second count. *Page 5
From what we have said, it follows that the judgment of the trial court should be affirmed, and it is so ordered.
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 APPELLANT'S MOTION FOR REHEARING.