Summary
In King v. State, 135 Tex.Crim. 71, 117 S.W.2d 800 (1938), the trial court erroneously instructed the jury if they found King guilty they might also specify the length of time, up to two years, he was prohibited from driving a motor vehicle on state highways.
Summary of this case from State v. McPhersonOpinion
No. 19825.
Delivered June 8, 1938.
1. — Verdict — Rule Stated.
In a criminal case, the trial court can not accept the verdict, discharge the jury, and then decline to follow the verdict in a material part, even where the jury has incorporated in the verdict something not authorized in the court's instructions.
2. — Intoxicated Driver — Verdict — Revocation of License.
In prosecution for driving an automobile upon a public highway while intoxicated, where the jury followed trial court's erroneous instruction and revoked defendant's driving license for two years, as authorized in the instruction, trial court could not accept the verdict and ignore that part of the verdict revoking defendant's driving license for two years, and adjudge a revocation for six months in accordance with statute, providing for the automatic suspension of license for six months on a first conviction for "drunk driving," and trial court's action in doing so required reversal.
Appeal from the District Court of Eastland County. Hon. Geo. L. Davenport, Judge.
Appeal from conviction for driving an automobile on a public highway while intoxicated; penalty, one year in penitentiary and revocation of driving license for six months.
Reversed and remanded.
The opinion states the case.
M. E. Lawrence, of Eastland, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction is for driving an automobile upon a public highway while appellant was intoxicated.
We find the record presents an unusual situation.
After instructing the jury what penalty they could assess in event they found appellant guilty of "drunk driving," the court also told them they might: "* * * in addition to the penalty, if any, you may assess, you shall state the length of time the defendant shall be prohibited from driving any motor vehicle on the highways of this State, not to exceed two years."
No objection was interposed to said instruction, but same was not the law. It had been repealed by an Act of the 2d C. S., 44th Legislature, which provided that the license should be automatically suspended for six months upon a first conviction for "drunk driving." Harris v. State, 109 S.W.2d 201; Morris v. State, 112 S.W.2d 193; Chaney v. State, 112 S.W.2d 464. Following the instruction of the court the jury returned a verdict of guilty, fixing the punishment at one year in the penitentiary and revoking appellant's driving license for two years.
In an apparent effort to correct the error the court entered a judgment following the verdict in so far as confinement in the penitentiary was concerned, and then ignored the part which revoked the driving license for two years, and adjudged a revocation for six months.
It is well established that the court can not accept the verdict, discharge the jury, and then decline to follow the verdict in a material part. Champion v. State, 113 Tex. Crim. 172, 19 S.W.2d 63; Williams v. State, 118 Tex. Crim. 366, 42 S.W.2d 441, and authorities cited in said opinions. The holding mentioned is given application even where the jury has incorporated in its verdict something not authorized in the court's instruction. See Pritchard v. State, 117 Tex.Crim. Rep., 35 S.W.2d 717; Ex parte Edwards, 125 Tex.Crim. Rep., 67 S.W.2d 308.
In the present case the jury believed from the instructions they had received that they could suspend appellant's driving license for two years. If they had not so believed a different verdict entirely might have been reached. It is not a case where this Court can reform a judgment.
We are compelled under the record to reverse the judgment and remand the case for a new trial.