Dailey v. State

285 S.W.2d 733 (1955)

Juanita DAILEY, Appellant, v. The STATE of Texas, Appellee.

No. 27842.

Court of Criminal Appeals of Texas.

November 23, 1955.

Ben Hagman, V. P. Craven, Weatherford, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is felony theft; the punishment, 3 years.

Our State's Attorney confesses error. The verdict was returned by a jury consisting of only eleven jurors. A verdict of less than twelve jurors will not support a valid judgment. Clark v. State, Tex.Cr. App., 276 S.W.2d 819, and cases there cited.

Appellant urges, however, that we write on the question of former jeopardy which she contends was raised. Though the record is far from complete on the question, we do observe that there was no final judgment in the prior case because notice of appeal was given before the court dismissed the case. Only a final judgment will support a plea of former conviction. Ramirez v. State, 147 Tex.Cr.R. 256, 179 S.W.2d 976.

The judgment is reversed and the cause remanded.