
    MOORE v. STATE.
    (No. 5005.)
    (Court of Criminal Appeals of Texas.
    April 24, 1918.)
    1. Criminal Law <&wkey;1090(15) — Appeal—Defective Verdict — Exceptions.
    Code Cr. Proc. 1911, art. 744, making necessary a bill of exception to any decision, opinion, order, or charge that is to be reviewed on appeal, not applying to the form or substance of a verdict, does not, in view of article 773, making it the duty of the court to refuse to receive a defective verdict, make failure to object to a defective verdict a waiver of such defect.
    2. Criminal Law &wkey;3l090(15) — Appeal—Defective Verdict — Bill of Exceptions.
    The objection that the verdict does not support the judgment is fundamental in view of Code Cr. Proc. 1911, art. 837, subd. 9, and article 853, and can be raised for first time on appeal without bill of exceptions.
    3. Darceny <&wkey;>8 — Persons Liable — Receiver of Stolen Goods.
    Where an indictment charges theft of an automobile in one count, and receiving the automobile as stolen property in another count, a verdict finding defendant guilty on both counts is improper; it being impossible for defendant, guilty of receiving a stolen automobile, to have stolen it himself.
    4. Criminal Law &wkey;878(l, 2) — General Verdict — Several Counts.
    Where an indictment charges theft in one count, and receiving stolen property in another, a general verdict of guilty, will support a judgment of guilty under either count, but a verdict of guilty on both counts will not support a judgment of conviction for the theft.
    Appeal from District Court, McDennan County; Richard I. Munroe, Judge.
    George Moore was convicted of theft, and he appeals.
    Reversed and remanded.
    J. A. Kibler and Shurtleff & Cummings, all of Waco, and Chas. D. Black, of Austin, for appellant. Jno. B. McNamara, Co. Atty., and D. C. Woods, Asst. Co. Atty., both of Waco, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was charged by indictment with theft, and in the same indictment, by separate count, with fraudulently receiving stolen property. The facts are sufficient to lead to the conclusion that one Oscar I-Cimball and the appellant acting together stole an automobile, the property of Templeton. The theft charged was based upon these facts, and the receiving stolen property is alleged to have been from Oscar Kimball, the same person who acted with appellant in the theft. Each of the counts were embraced in the charge; the verdict received is as follows:

“We, the jury, find the defendant guilty on both counts and assess his punishment at confinement in the state penitentiary for five years.”

The court on this verdict entered a judgment declaring appellant guilty of theft and condemning him to confinement in the penitentiary for not less than two nor more than five years.

Appellant insists that the verdict does not support the judgment. That the verdict is informal is conceded by the state, but its counsel insists that the failure to call the court’s attention to it at the time constitutes a waiver of its defect. We are of the opinion that article 744, touching bills of exception, is not directed to objections to the form or substance of a verdict. The statute (article 773) puts it within the power of the trial judge to direct the correction of an informal verdict, and, we think, places the duty upon him to examine it and determine its sufficiency, and to refuse to receive a defective one. Taylor v. State, 14 Tex. App. 340; Black v. State, 68 S. W. 683, and other cases cited in Vernon’s C. C. P. p. 582. The statute (article 837, subd. 9) makes the fact that the verdict is contrary to law a ground for motion for new trial. The judgment is based on the verdict, which must he shown in the judgment entered. C. O. P. art. 853. If the verdict appears insufficient to support the judgment, the matter is fundamental. Oye. vol. 2, p. 707; Bennett v. Butterworth, 11 How. 669, 13 L. Ed. 859.

The indictment contained two separate offenses, theft and fraudulently receiving stolen property. Brown, v. State, 15 Tex. App. 581; Gaither v. State, 21 Tex. App. 527, 1 S. W. 456; Wheeler v. State, 34 Tex. Cr. R. 350, 30 S. W. 913; Fernandez v. State, 25 Tex. App. 538, 8 S. W. 667; Street v. State, 39 Tex. Cr. R. 134, 45 S. W. 577; Clark v. State, 194 S. W. 158. In the Brown Case, 15 Tex. App. 581, supra, the court says:

“A theft must be perfected before that of receiving stolen property can be perpetrated, and the receiver of the stolen property must be another person than the thief.”

The verdict in question finds that the appellant took the automobile under circumstances constituting theft. It also finds that another person stole it, and that appellant, after the theft, fraudulently received the property. A general verdict could have been applied to either offense charged in the indictment and supported by the evidence. Rosson v. State, 37 Tex. Cr. R. 87, 38 S. W. 788.

The verdict here is not general; it is a specific finding that appellant is guilty of each of the offenses charged. A holding that such a verdict does not support the judgment is made by the Supreme Court of Massachusetts in Commonwealth v. Haskins, 128 Mass. 60, and from which we quote as follows:

“By that record it appears that there had been the larceny of a cow, and but one larceny of that cow. The defendants were charged in one count of the indictment with such larceny, and in the second count with having received her knowing her to have been thus stolen. It is certain that the defendants could not be guilty upon both counts, because in law the guilty receiver of stolen goods cannot himself be the thief; nor can the thief be guilty of a crime of receiving stolen goods which he himself has stolen.”

This is supported by the case of Crawford v. State, 31 Tex. Cr. R. 55, 19 S. W. 766, wherein an indictment was for forgery and uttering the forged instrument, charged in separate counts. The verdict, like that in the present ease, was specific in finding guilty of each offense. The court in an opinion reviewing the authorities held the verdict did not support the judgment.

From the state’s standpoint the appellant and Kimball acted together in theft of the automobile. If guilty, he is a principal in the theft, and upon another trial, the evidence being in substance the same, the case should be submitted upon the theory that he and Kimball acted together in the theft, and the charge on fraudulently receiving stolen property should be omitted. '

Because the verdict does not support the judgment rendered, it is reversed and remanded.

PRENDERGAST, J., absent. 
      
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