Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 319
The following text was automatically extracted from the image on this page using optical character recognition software:
1875.] BUSTER v. THE STATE. 319
Opinion of the Cotlrt.
within the different degrees charged by the indictment, to assess
the punishment if the same is not absolutely fixed by law.
It must clearly appear from the verdict, not only that there is
no conflict in the finding of the jury on the issue of the guilt
and the assessment of the penalty, but their determination in
the one must be in harmony with, and supported by that in
the other. To support the judgment, the court must be able
to see from the verdict of "guilty," returned by the jury, that
it authorizes and requires the assessment of a penalty affixed
by law, or that the penalty assessed by the jury is warranted
by law. And also that the jury are not mistaken in the character
or degree of the offense of which they have, in fact, found
the defendant guilty, and imposed a penalty not affixed to it by
law. How can the court know this, unless the verdict finds
the offense, or its degree, as well as the penalty ? It is but
arguing in a circle to say that the jury have found the defendant
guilty of murder in the first degree because they have
fixed the penalty of death; and that they were warranted in
assessing the punishment of death because they have found
him guilty of murder in that degree. The only hypothesis
upon which, with the least degree of plausibility, we can lool$
to the penalty assessed by the jury, to determine the degree of
guilt found by the verdict of "guilty" is, that the jury could
not have mistaken the law through ignorance or wantonness, and
could not have been deceived or misled through prejudice
It is intimated, however, in the case of Holland v. The State,
that the general verdict of "guilty" returned in that case was
sufficient to warrant the judgment, because the defendant was
charged by the indictment with murder in the first degree.
The verdict, it is said, finds the defendant guilty as charged,
and as he is expressly charged with murder in the first degree,
the verdict must be'held to find him thus guilty. To this it is
sufficient to answer, that indictments in the usual form charge
murder in the first degree as well as in the second. The court
cannot therefore say, from a verdict of "guilty, as charged
Here’s what’s next.
This book can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Book.
Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/327/: accessed December 11, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .