Opinion
No. 24635.
February 22, 1950.
1. — Jury — Peremptory Challenges — Joint Trials.
Defendants, tried jointly, are each entitled, in the selection of the jury, to five peremptory challenges.
2. — Prior Convictions — Enhancement of Punishment — Restricted to Allegations.
Only the prior convictions, pleaded, or alleged in the indictment, were available to the state for the purpose of enhancing the punishment, and any other convictions should have been limited in the court's charge to the credibility of the appellant as a witness.
3. — Charge — Habitual Criminal — previous Offenses — Not Alleged — Erroneous.
The court's charge was erroneous where it authorized the jury to find appellant guilty as an habitual criminal upon a finding that he committed the offense charged and had been three times previously convicted of a felony, one or all of which were not alleged in the indictment.
4. — Verdict — May Be Corrected — By Court — Not Rendered.
The trial court has the power to correct an informal verdict with the consent of the jury, but on a plea of not guilty cannot render a verdict or any part thereof.
5. — Jury Finding — Essential — To Judgment.
The finding of the jury as to appellant's former convictions was essential to the validity of a judgment assessing a life term against him.
6. — Verdict — Court Cannot Add To.
The court was without authority to add to the verdict a finding that appellant had been three times convicted of a felony.
7. — Legal Rights — Court's Duty — To Protect.
Appellant's legal rights should have been protected on the trial either by the judge or by an attorney appointed by him.
8. — New Trial — Hearing of Motion — Errors Pointed Out — Should Be Granted.
Appellant's motion for a new trial should have been granted, where it appeared, on the hearing, that appellant had an attorney who was absent from the trial without fault of appellant, and where the errors complained of were pointed out at such hearing.
9. — Convict — Trial According To Law — Entitled To.
The fact that appellant is a convict, serving sentence on many convictions, does not militate against his right to have a trial according to law and to have a jury pass on his guilt or innocence as well as whether or not he has been convicted of prior offenses.
Theft. Appeal from district court of Houston County; penalty, (third conviction) confinement in the penitentiary for life.
Hon. V. M. Johnston, Judge Presiding.
Reversed and Remanded.
No attorney of record for appellant on appeal.
George P. Blackburn, State's Attorney, Austin, for the state
This is a companion case of that of Leonard Leroy Moore, No. 24,661, this day decided. (Page 307 of this volume.)
Upon a joint trial the same proceedings were had in the selection of the jury, the charge of the court and the verdict of the jury, and appellant also received a life sentence in the penitentiary.
Appellant likewise was charged by indictment in addition to the charge of theft of the Crowder automobile with having been previously convicted of two felonies less than capital, the convictions being properly charged to have been successive, that is, each succeeding offense having been committed after conviction of the preceding offense.
And, as in the case of Moore, the state proved in addition to the two previous convictions alleged, that appellant had been convicted of many other felonies including burglary, theft and robbery. Such convictions were not shown to be successive, and such testimony was not limited in the charge.
Appellant likewise had no attorney at the trial, and made no objections, reserved no exceptions, and filed no written motion for continuance. It appears that Leonard Leroy Moore was spokesman for appellant as well as for himself on the trial.
A motion for new trial and an amended motion for new trial were filed by the three defendants jointly tried, in person, but appellant was not joined in the amended motion filed in behalf of Leonard Leroy Moore by an attorney.
His motion for new trial was overruled on the same day that Moore's amended motion was acted upon, and appellant perfected his appeal, and has filed a statement of facts properly approved by the trial judge.
This was a joint trial. The procedure erroneous as to Moore was equally erroneous as to appellant.
Under the circumstances, we are unwilling to affirm the conviction of appellant because of the insufficiency of his motion for new trial or his failure to make proper objections and reserve proper exceptions, after reversing the conviction of another jointly tried. In justice, he is entitled to another trial, and a further opportunity to have counsel.
The judgement is therefore reversed and the cause remanded.
Opinion approved by the Court.