Mootry and Rolly v. State

HENDERSON, Judge. The appellants in this case were tried under an indictment charging them with murder; were convicted of murder in the first degree, and their punishment assessed at death; and from the judgment of the lower court they prosecute this appeal. There is no statement of facts in the record in this case, but appellants rely exclusively on the bills of exception taken by them to the charge of the court, and to the verdict of the jury, as returned by the jury. The appellants, in the first bill of exception, insist that the court erred in its charge to the^ jury, in that, as suggested in said bill of exception, said charge of the court makes the appellants’ guilt of murder in the first degree depend upon express malice entertained by one of said defendants. We have examined the charge in that respect, and we do not so regard it. In each of the charges where the court charges as to the circumstances which authorized the jury to find the defendants guilty, upon express malice, of murder in the first degree, it requires them to find that both were actuated by express malice, before they could find them guilty. In charge No. 24, in charging on the question of principals, the court requires the jury to find “that both were present, and acting together with the same intent, at the time of the murder, before they could find both guilty.” In charge No. 25, the jury were further instructed “they might find one guilty, and nbt the ether; that the guilt of each depended upon his own participation in the offense charged.” The evidence not being before us, we are not informed as to the respective acts of the appellants, nor what part in the homicide was executed by one or the other, but the charges in question are such as might properly have been given upon a state of facts provable under the indictment. The appellants urge that the court erred in the twenty-second paraagraph of its charge to the jury, in instructing them, after the facts stated by the court, ‘ ‘that they could find the defendants guilty of mur *455 tier in the second degree, as there was evidence tending to show that the defendants went to the place where Andrew and Toni Prikryl were, not with the intention of killing them, or either of them, but for the purpose of giving them a whipping, and that from the act of Andrew Prikryl, in attempting to use his gun upon the defendants, and to take their lives, it became necessary for the defendants to use more force than was first intended by them, in engaging in the difficulty.” It will be noted that this bill of exception, at its inception, states, “that after the facts as stated by the court,” etc, and then, concluding, states, “as there was evidence tending to show,” etc. We have examined the record carefully to ascertain whether or not, outside 'of this bill itself, there was any certificate of the judge as to any such facts proven on the trial of the case, and we have failed to find such a certificate. So that we take it that the contention of the appellants is that the bill in question makes the judge certify that a state of facts was proven on the trial of the case to the effect “that the defendants went to the place where Andrew and Tom Prikryl were, not with the intention of killing them, or either of them, but for the purpose of giving them a whipping, and that from the act of Andrew Prikryl, in attempting to use his gun upon the defendants, and to take their lives, it became necessary for the defendants to use more force than was first intended by them, in engaging in the difficulty; that, on such a state of case, the court instructed the jury to find the defendants guilty of murder of the second degree.” We do not understand the bill of exceptions to convey that idea. We understand that the bill of exceptions shows that the court gave paragraph 22 in charge to the jury, and that appellants claim that the court gave said paragraph in charge to the jury, on the ground that there was such evidence as above quoted. In other words, the bill does not certify that such facts were in proof by appellants, but that appellants, as their ground of exception, claim that such facts were proven. We do not construe the bill in question as a certificate of the judge that such a state of facts was proven; much less, that they were all the facts proven in that connection. There might have been evidence tending to prove such a state of facts, and yet in that same connection there might have been other evidence showing that notwithstanding the parties went to the place of the homicide with such purpose, expecting that the deceased would take the whipping or beating which they intended to give him, but further with the purpose on their part that, if he did not submit to it, they would cause him to submit to the same, else kill him. This would at least have made the homicide murder in the second degree. The bill should not only contain the testimony on the point, but should show in itself that it covered all the testimony elicited on the issue in question. The bill in this case only certifies as to the grounds of appellants’ objection, and not that the grounds were true, or the facts were proved. See Smith v. State, 4 Tex. Crim. App., 626; Hennessy v. State, 23 Tex. Crim. App., 340; Ezzell v. State, 29 Tex. Crim. App., 521; Cline v. State, 34 Tex. Crim. Rep., 347. There being no statement of facts in the record, the charge in *456 question may have been more liberal towards the defendants than the evidence justified; and though it be conceded that said paragraph 22, as an abstract proposition, does not announce the law, yet, not having the facts before us, we cannot say that it was calculated to impair or injure the rights of the appellants. The appellants in this case insist that the case should be reversed because the verdict of the jury is a joint verdict. Said verdict is in the following form: “We, the jury, find the defendants, Mat Mootry and Albert Roily, guilty of murder in the first degree, as charged in the indictment, and assess'their punishment at death.” There is no uncertainty in this verdict, as to the fact "that the jury found both defendants guilty, nor is there any uncertainty as to the degree of murder of which they found them guilty; but it is contended that the clause, “and assess their punishment at death,” is a joint verdict, as to their punishment, and that the infliction of the death of either would satisfy the verdict. To support this view, the appellants cite a number of decisions of this court. We have examined the cases on this subject, beginning with Flynn v. State, 8 Tex. Crim. App., 398, and concluding with the cases cited by appellants in Whitcomb v. State, 30 Tex. Crim. App., 269. A number of these cases were misdemeanors, in which the punishment was a fine, and the verdict imposed this fine jointly against both defendants. In the Flynn case the two defendants were tried jointly, and the jury, by their verdict, assessed the punishment at a fine of $250 and six months’ imprisonment in the county jail. The court in that case says: “When several are joined in one indictment, a joint award of one fine against them all is erroneous, for it should be several against each defendant; for otherwise one wrho has paid his proportionable part might be continued in prison until the other have all paid theirs which would be, in effect, to punish one for the offense of another.” And this seems to be followed in other misdemeanor cases where the question has arisen. See Matlock v. State, 25 Tex. Crim. App., 716; Cunningham v. State, 26 Tex. Crim. App., 83. In Medis v. State, 27 Tex. Crim. App., 194, appellants were jointly tried for sodomy. The verdict of the jury, as returned, was as follows: “We, the jury, find Charles Medis and Ed Hill guilty, as charged, of sodomy, and assess the punishment at ten years’ confinement in the penitentiary.” This case was reversed (citing the cases previously mentioned) on the ground that the verdict was joint, and not several. This case was followed in Caesar v. State, 30 Tex. Crim. App., 274. The form of the verdict in said case was: “We, the jury, find the defendants guilty as charged, and assess their punishment at three years’ confinement in the penitentiary.” This case was also reversed, on the authority of the foregoing cases. In Hays v. State, 30 Tex. Crim. App., 472, Hays and Trent were jointly tried for burglary, and found guilty by the jury. The verdict was in the following language: “We, the jury, find the defendants guilty of burglary, as charged in the indictment, and assess their punishment at four years in the penitentiary.” This case was also reversed, because *457 the verdict was joint, and not several, following the preceding cases. Conceding that the aforesaid cases were decided correctly, and that the verdicts could only be construed as joint verdicts, and not several, upon which hypothesis the court seemed to have viewed said verdicts, yet, in our opinion, the case at bar is distinguishable from either of said cases, as to the verdict and the question here involved. The jury in this case, in assessing the punishment of the defendants, uses the plural, 1 ‘their punishment,” and this they fix at death; that is, as we understand it, in common parlance, the death of each, or “their death.” The very terms of the verdict make this certain. The nature of the punishment in some of the other cases mentioned was such as to leave it questionable whether the verdict was intended to be divisible, or an entirety, as to each defendant, but not so in the present case. We think the rule of ‘ Hcl cerium est quod cerium reddi potest,” should be held applicable in the construction of even as important a matter as the verdict of a jury. Mr. Bishop says, in this regard: “If the verdict is guilty against all, it should be in terms which could be construed as several; and it will be, for example, if it finds each guilty, by name.” See Bishop Grim. Proc., § 1036. And in Minnessota it is held that: “There is no set form or words in which a verdict is required to be written. Therefore the only rational general rule that can be adopted by which to measure its sufficiency is, does it show clearly, and without any doubt, the intention of the jury, and their finding on the issues presented to them? If it does, it cannot be declared bad without sacrificing substance and justice to form. No error that is not a violation of some positive rule of law, which may possibly prejudice the defendant, can be a ground for reversal on appeal.” See State v. Ryan, 13 Minn., 370 (Gil. 343). No one on reading said verdict, would question fora moment that the jury intended thereby to assess the punishment of each of said defendants at death, and the language used, to our minds, imports that idea, and is inconsistent with any other reasonable construction; and, entertaining that view, we hold the verdict good, as finding each of the defendants guilty of murder in the first degree, and assessing the punishment of each at death. There being no errors in the record sufficient to authorize a reversal of this case, the judgment of the lower court is affirmed as to each of said -defendants. Affirmed.