O'Connor v. State

39 S.W. 368, 37 Tex. Crim. 267, 1897 Tex. Crim. App. LEXIS 86

• Court: Court of Criminal Appeals of Texas
• Decided: March 3, 1897
• Docket: No. 1282.
• Status: Published

Opinion

HURT, Presiding Judge.

There are two counts in the indictment —the first, for forging a certain draft; and the second count for having possession of said draft, knowing it to have been forged, with intent to pass the same. The jury convicted the defendant on the last count. The verdict reads: “We, the jury, find the defendant guilty, as charged in the second count of the indictment, of having in his possession a forged instrument of writing with intent to pass the same as true. [Signed] E. L. Reeves, Foreman.” We advise that the jury be instructed simply to say upon which count they find the accused guilty, and not attempt to set out the contents of that count. It is very questionable whether this is not a special 'verdict; and, if it be, it would be insufficient to sustain the judgment, because it does not find that he had the instrument in his possession knowing the same to have been forged. These remarks by the way. Art. 750, Code Crim. Proc. 1895, requires that the verdict shall assess the punishment, in all cases where the same is not absolutely fixed by law, at some particular penalty. There is no punishment assessed by this verdict. Is the punishment absolutely fixed by law to the offense for which appellant has been convicted? It is not. The punishment prescribed for the offense is not less than two nor more than five years. Penal Code 1895, Art. 544. The court had no authority to enter judgment for any punishment, and the verdict was an absolute nullity and could not support the judgment. The judgment is reversed and the cause remanded.

Reversed and Remanded.