
    COLEMAN v. STATE.
    (No. 3253.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1914.)
    Criminal Law (§ 889) — Verdict — Discharge and Reconvening of Jury.
    Though the first verdict on a prosecution for theft is one unauthorized by law, it assessing the punishment at a fine alone, the court has no authority, after discharge and separation of the jury, to reconvene them, so that their second verdict, returned after being so reconvened, is a nullity.
    LEd. Note. — For other cases, -see Criminal Law, Cent. Dig. §§ 2109, 2110, 2112; Dec. Dig. § 889.*]
    Appeal from Gregg County Court; J. H. McHaney, Judge.
    Jim Coleman was convicted of theft, and appeals.
    Reversed and remanded for new trial.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of theft. It appears that after the jury, upon being charged, retired to consider of their verdict, they afterwards returned into open court 'the following verdict:

“We, the jury, find the defendant guilty, and assess his punishment at a fine of thirty-seven dollars.”

The court accepted the verdict and discharged the jury. After discharging the jury, and they had left the courtroom, the court’s attention was called to the fact that the verdict was not responsive to the charge, and was one unauthorized by law, in that the law requires, in case of theft, the punishment shall be confinement in the county jail and fine, or by confinement in jail alone, without fine. In no event is the jury authorized to assess the punishment by fine alone in case of theft. He then had the jury recalled, explained to them he could not accept the verdict, and called their attention to the law. The jury was again placed in retirement, when they returned the following verdict, upon which the judgment is based:

“We, the jury, find the defendant guilty, and assess his punishment at thirty-seven days in jail.”

After the court had discharged the jury, and they had separated, he had no authority to reconvene them, and the last verdict returned is a nullity, and cannot support a judgment. Especially is this true when it is shown by the record that one of the jurymen, Hugh Echols, talked with Jasper Rod-den about the case and verdict while the jury was discharged and before they were recalled.

The first verdict is one not authorized by law, and the second being rendered after the jury had been discharged and separated, there is no verdict in this case upon which a judgment can be based. When the court ascertained that the verdict was an improper one, and he had discharged the jury, he should have promptly granted a new trial. As he did not do so, it becomes necessary for us to do so, and therefore the judgment is reversed, and cause remanded for a new trial.

Reversed and remanded.  