This case is before us upon the State's motion for rehearing.
An inspection of our former opinion shows that the reversal was had upon the ground that the verdict of the jury was indefinite and uncertain. The record discloses that the prosecution was upon an information which charged appellant with an aggravated assault, and that the trial court submitted to the jury, in his charge, both aggravated and simple assault; and that the verdict of the jury was as follows: "We the jury find the defendant guilty as charged in the information, and assess his punishment at a fine of $25."
Upon more mature reflection, we are of opinion that we overlooked the effect upon this verdict of the words "as charged in the information," and are convinced that same made said verdict sufficient.
None of the authorities cited by appellant, or to which our attention has been directed as sustaining appellant's contention, contain these words, or words of similar import. The authorities all hold that where the court submits to the jury different grades of an offense, included by statute in the one charged in the information, and a general verdict of guilty is returned, fixing a punishment which might be given for more than one of the grades of offense submitted in the charge, such verdict will be bad; but when the verdict is "guilty as charged in the information or indictment," or where the punishment fixed by such verdict is one which by law can only be inflicted as punishment for one of the grades of the offense so submitted, we think the rule different, and the verdict sufficient. McGee v. State,39 Tex. Crim. 190; Bryant v. State, 54 Tex.Crim. Rep.; Burton v. State, 62 Tex.Crim. Rep.; Dugat v. State,67 Tex. Crim. 54; Nettles v. State, 5 Texas Crim. App., 386; Henderson v. State, 5 Texas Crim. App., 134.
"In such case," as said by JUDGE ECTOR, in the Henderson case, supra, "there can be no doubt of what offense the jury intended to find the defendant guilty."
In the McGee case, supra, in which the charge in the indictment was rape, and the trial court submitted to the jury both rape and assault with intent to rape; and the penalty inflicted was one which could have been given for either offense submitted, Judge Hurt held that the language in the verdict, as follows: "guilty as charged in the indictment," is sufficient to make it clear that the jury intended to convict the defendant of the only offense named in the indictment.
The question was fully discussed in the Bryant case, supra, in an able opinion by Judge Ramsey. *Page 138
All the authorities make it the duty of the courts to give the language used in a verdict every reasonable intendment in upholding the same.
The Lee case, cited in the original opinion, in common with most of the authorities cited by appellant, upon more careful inspection, is found to be a case in which merely a general verdict of guilty was rendered.
The State's motion for rehearing is granted; the judgment of reversal is set aside, and the judgment of the lower court is affirmed.
Affirmed.
ON REHEARING. January 14, 1920.