Belton v. State, 27979

• Decision Date: 01 February 1956
• Docket Number: No. 27979,27979
• Citation: 162 Tex.Crim. 436,286 S.W.2d 432
• Parties: James BELTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 432

286 S.W.2d 432

162 Tex.Crim. 436

James BELTON, Appellant, v. The STATE of Texas, Appellee.

No. 27979.

Court of Criminal Appeals of Texas.

Feb. 1, 1956.

James Haynes, Jr., Laredo, for appellant.

E. James Kazen, Dist. Atty., Laredo, Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for robbery with firearms; the punishment, ninety-nine years in the penitentiary.

The state's testimony shows that the appellant early on the morning of May 21, 1955, by telephone sought the services of Dr. Shannon T. Peterson, a dentist, to relieve a toothache which he said had troubled him all night, and was waiting at Dr. Peterson's office door when he arrived; that immediately after entering the office, Dr. Peterson turned and appellant who was then pointing a pistol toward him commanded that he empty his pockets on the floor which he did because he was in fear of his life or serious bodily injury, and that the appellant picked up more than $300 in money from the floor, which Dr. Peterson had placed there at his command. At this instant, Dr. Peterson's secretary opened the office door. Dr. Peterson called to her to leave, and appellant reached for her as she turned away. Dr. Peterson then seized the appellant, who shot him three times in the stomach with the pistol. The officers and others came to the scene immediately, the appellant was arrested and Dr. Peterson removed to the hospital.

Appellant did not testify or offer any evidence in his behalf.

We find the evidence sufficient to support the conviction.

By Bill of Exception No. 1, appellant contends that the trial court erred in rejecting the first verdict of the jury assessing his punishment at life imprisonment as it was the true verdict of the jury, and further erred in instructing the jury to return another verdict because such verdict was directed by the court.

The bill reveals that the jury came into open court with the following verdict:

'We, the jury, find the defendant guilty as charged in the indictment and assess his punishment at confinement in the State Penitentiary for life. (Signed) Rudolfo C. Centeno Foreman.'

And it further reveals that:

'After the Court had read the verdict he advised the jury that he could not receive it; that it was unauthorized; that a life term in the penitentiary is not for a term of years; and that the Court then re-read to the jury a portion of his charge stating that for armed robbery the penalty was death or confinement in the penitentiary for a term of not less than five years; and that they should retire and reconsider their verdict. Thereupon the jury retired, and in about ten minutes returned into Court the following verdict, to wit: 'We, the jury, find the defendant guilty as charged in the indictment and assess his punishment at ninety-nine (99) years in the State penitentiary. (Signed) Rudolfo C. Centeno, Foreman.'

'The verdict was read by the Court in the presence of the jury, the jury was polled and all assented to it, and the Court thereupon announced that it would be received as the verdict in the case. This was accordingly done. Thereupon the Court pronounced the judgment in accordance with the verdict.

'This proceeding was had and the defendant took no exception to it, but the question is raised in the Motion for a New Trial, * * *.

'In this connection the Court further certifies that it was undisputed upon the trial of this case that the robbery was perpetrated with use of fire arms * * *.'

The charge of the court submitted only the offense of robbery by the use of firearms.

Art. 1408, Vernon's Ann.P.C....