Bessett v. State

PBENDEBGAST, PRESIDING Judge. This is an appeal from a conviction of theft from the person, with the. lowest penalty assessed. There is no statement of facts. The question to be passed upon is raised bjr a bill of exceptions. It shows substantially that appellant filed no plea seeking a suspended sentence; that, after all the evidence, charge of the court and the argument of the attorneys for both sides, the jury retired to consider their verdict. They all knew that the court did not submit any charge authorizing them to find anything on the subject of suspending the sentence. That, when they first went out, six were for conviction and six for acquittal; and perhaps later five were for conviction and seven for acquittal. When the jury had thus been hung up for some hours, the question of a suspended sentence was brought up by some of them; and, it seems, after discussing this for a while, they, differing as to whether they could do so, agreed, and in a body went before the court in open session and propounded this written query to the judge: “If we convict the defendant and assess his punishment at confinement in the penitentiary for two years, can we recommend a suspensión of the sentence?” which was properly signed by the foreman. The court answered in writing on the same piece of paper the word “No.” They then again retired to further consider their verdict. Some of them then argued that they had to decide the question themselves and recommend the sentence, and that, when they returned into open court their verdict finding appellant guilty, fixing" his punishment and recommending suspension of his sentence, the judge would, if he received the verdict, suspend the sentence, and, if not, send them back for further consideration. They, thereupon, returned into open court the following verdict: “We, the jury, find the defendant guilty as charged by indictment and assess his punishment at confinement in the penitentiary for a term of two years, and we recommend a suspended sentence.” This was properly signed by the foreman as such. The court received the verdict and discharged the jury; then entered up a judgment and sentence assessing his punishment at confinement in the penitentiary for a term of two years and *112 disregarded the recommendation of the jury to suspend the sentence. Afterwards, the appellant made a motion for a new trial, attaching the affidavit thereto of three of the jurors, in effect stating that they did not in fact believe the appellant guilty beyond a reasonable doubt but had some doubts of it and because thereof were unwilling to convict him unless his sentence should be suspended, but that they all vóted ■for guilty, so brought in the verdict and understood it at the time, but would not have done so had they not believed that the court would suspend the sentence. When the motion for a new trial was heard, the court permitted four of these jurprs to testify, who undertook by their testimony to thus impeach their verdict. They all testified to the fact of the jury propounding the said question to the judge, and his answer thereto. One of them swore that he knew the court would not suspend the sentence; that, when the judge had answered their query "No/’ he knew that settled it. He said it was afterwards argued in the jury that it would not hurt to put the recommendation down there. It would not change the verdict at all, because the jury had decided it. ••anyway, and that would not affect the verdict at all; that was agreed •on. The court, after hearing all the evidence by the four jurors attempting to impeach their verdict, denied a new trial, and, in his qualification of the bill, states about the jury coming in' a body and pro-' pounding the said question to him, and his answer thereto, and further said: “In view of what took place, it is inconceivable how any juror could have been misled by alleged misrepresentations of other jurors.”. The action of the court was correct in every particular. This court in several decisions, has held that the judge had no power to suspend the sentence without the proper plea being filed prior to beginning the 'trial, and it was in effect his duty to ignore the recommendation.for' a suspended sentence unless such plea had been'jiffiledftbefore the^trial ibegan. Barnett v. State, 74 Texas Crim. Rep., 619, 170 S. W. Rep., 143; Speer v. State, 171 S. W. Rep., 201; Roberts v. State, Texas Crim. Rep., 77. Rep., 77. The latter part of the verdict recommending” the suspension of'sentence was mere surplusage. Perry v. State, 44 Texas, 100; Roberts v. State, 33 Texas Crim. Rep., 83. The court in the judgment, and; sentence correctly in effect so held and acted. It has always been held, both by our Supreme Court when'it' had criminal jurisdiction and this court, that the jury, and none of the .jurors, could impeach their verdict as was attempted to be done by their testimony in this ease. In Johnson v. State, 27 Texas, 758, our Supreme Court said: “No case has yet occurred in this State wherein the courts nave tol-erated such affidavits to impeach verdicts. If ever admissible, they can • only be allowed in an extreme case and under imperative necessity for the"accomplishment of justice. The rule rests upon the obvious ground that,, were it otherwise, few verdicts would escape attack by jurors ' under influence that would be brought to bear upon them after their -discharge by the court.” *113 “The rule is well established that no affidavit, deposition or other sworn statement of a juror will be received to impeach a verdict, or to explain it, or to show on what ground it was rendered. Weatherford v. State, 31 Texas Crim. Rep., 530. In Pilot v. State, 38 Texas Crim. Rep., 515, this court held it was not error to refuse to set aside a verdict upon the affidavit of a juror that he had been impressed through fear to assent to it, nor will a verdict be set aside on account of the .affidavit of a juror that he was induced to sign a verdict by a promise that the jury would recommend executive clemency. Henry v. State, 43 S. W. Rep., 340; Montgomery v. State, 13 Texas Crim. App., 74.” Bacon v. State, 61 Texas Crim. Rep., 206; Patterson v. State, 63 Texas Crim. Rep., 297; Rogers v. State, 71 Texas Crim. Rep., 149. The statute, article 773, Code of Criminal Procedure, permitting an informal verdict to be corrected by the court with the consent of the jury has no application to this case. The court was not required to strike out, with or without the consent of the jury, their recommendation of a suspended sentence, nor was he required to have the jury retired to do so, or further consider their verdict. The verdict, in as plain language as could be, found the defendant guilty of the offense ■charged and fixed his punishment therefor. The court could properly, as he did, receive the verdict even with the recommendation, but he had neither power, nor authority, to render other than a straight judgment and sentence of conviction and not suspend the sentence. The judgment is affirmed. Affirmed.