Cobb v. State

Court of Criminal Appeals of Texas

Cobb v. State

139 S.W.2d 272, 139 Tex. Crim. 337, 1940 Tex. Crim. App. LEXIS 358

CourtCourt of Criminal Appeals of Texas

DecidedApril 24, 1940

DocketNo. 20993

StatusPublished

Cited by13 cases

This text of 139 S.W.2d 272 (Cobb v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cobb v. State, 139 S.W.2d 272, 139 Tex. Crim. 337, 1940 Tex. Crim. App. LEXIS 358 (Tex. 1940).

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Opinions

KRUEGER, Judge.

Appellant was convicted of theft of property of the value of less than fifty and over five dollars, and his punishment assessed at confinement in the county jail for a period of thirty days.

The State’s testimony shows that on the morning of December 9, 1939, the appellant and his brother, in a Ford car with a trailer attached, drove onto T. A. Pate’s premises, picked up a tractor wheel and placed it into the trailer. Mr. Pate, who saw them, walked up to where they loaded the wheel and inquired of them what they were doing, to which one of the men replied that they were taking the tractor wheel. At the request of Mr. Pate, they put the wheel back. Mr. Pate made them drive into Lubbock, where he turned them over to the sheriff and then made a complaint against each of them for theft. With reference to the value of the wheel, Mr. Pate testified: “I think that the wheel they had taken and put in the trailer probably ought to be worth ten dollars.” This was all and the only testimony as to the value of the wheel. Appellant did not testify or offer any affirmative defense.

The case was submitted to a jury who returned the following verdict: “We, the jury, find the defendant guilty as charged, and assess punishment at a fine of $0.00, and/or confinement in the County Jail of 30 days.”

It is obvious that the verdict is uncertain and for that reason cannot be upheld. This court, in the case of Allen v. State, 136 S. W. (2d) 232, passed upon a verdict couched in similar language and held it insufficient. In the case of Compton v. State, 91 S. W. (2d) 732, the term “and/or” appearing in an indictment was severely criticized by this court.

We note that appellant in due time objected to the court’s charge on the ground that the court assumed the value of the wheel to be ten dollars. We suggest that upon another trial the court reform its charge so as to meet the objection.

From what we have said it follows that the judgment of the trial court must be reversed and the cause remanded, 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.

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KRUEGER, Judge.

Appellant was convicted of theft of property of the value of less than fifty and over five dollars, and his punishment assessed at confinement in the county jail for a period of thirty days.

The State’s testimony shows that on the morning of December 9, 1939, the appellant and his brother, in a Ford car with a trailer attached, drove onto T. A. Pate’s premises, picked up a tractor wheel and placed it into the trailer. Mr. Pate, who saw them, walked up to where they loaded the wheel and inquired of them what they were doing, to which one of the men replied that they were taking the tractor wheel. At the request of Mr. Pate, they put the wheel back. Mr. Pate made them drive into Lubbock, where he turned them over to the sheriff and then made a complaint against each of them for theft. With reference to the value of the wheel, Mr. Pate testified: “I think that the wheel they had taken and put in the trailer probably ought to be worth ten dollars.” This was all and the only testimony as to the value of the wheel. Appellant did not testify or offer any affirmative defense.

The case was submitted to a jury who returned the following verdict: “We, the jury, find the defendant guilty as charged, and assess punishment at a fine of $0.00, and/or confinement in the County Jail of 30 days.”

It is obvious that the verdict is uncertain and for that reason cannot be upheld. This court, in the case of Allen v. State, 136 S. W. (2d) 232, passed upon a verdict couched in similar language and held it insufficient. In the case of Compton v. State, 91 S. W. (2d) 732, the term “and/or” appearing in an indictment was severely criticized by this court.

We note that appellant in due time objected to the court’s charge on the ground that the court assumed the value of the wheel to be ten dollars. We suggest that upon another trial the court reform its charge so as to meet the objection.

From what we have said it follows that the judgment of the trial court must be reversed and the cause remanded, 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.

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139 S.W.2d 272, 139 Tex. Crim. 337, 1940 Tex. Crim. App. LEXIS 358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cobb-v-state-texcrimapp-1940.

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