Ex Parte Erwin

• Citation: 170 S.W.2d 226
• Decision Date: 31 March 1943
• Docket Number: No. 22472.,22472.
• Parties: Ex parte ERWIN.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

170 S.W.2d 226

Ex parte ERWIN.

No. 22472.

Court of Criminal Appeals of Texas.

March 31, 1943.

Original ex parte proceeding by E. C. Erwin for a writ of habeas corpus discharging him from further confinement in the penitentiary.

Writ granted.

E. T. Branch and Henry E. Kahn, both of Houston, for petitioner.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

GRAVES, Judge.

This is an original application for a writ of habeas corpus, and same was set down for a hearing before this court relative to the issuance thereof.

On September 28, 1937, relator was indicted in Jackson County for the offense of robbery with firearms. He was tried on October 6, 1937, and, upon a plea of not guilty, he was convicted and given a sentence of confinement in the penitentiary for life, and judgment was entered thereon sentencing him to serve not less than five years nor more than life on October 11, 1937. Two days thereafter he was received in the State prison, and began to serve his sentence.

Relator was charged with the placing in fear of life and serious bodily injury and a robbery by means of exhibiting a pistol, a deadly weapon, and the jury, upon their finding of guilt, assessed a life penalty.

The charge of the court submitted the offense of robbery by the use of firearms alone, and authorized a conviction upon the jury's belief beyond a reasonable doubt of the use of a pistol in such robbery. It is noted that ordinary robbery was not submitted to the jury. The statute relative to the offense of robbery, Art. 1408, P.C., reads as follows: "If any person by assault, or violence, or by putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another any property with intent to appropriate the same to his own use, he shall be punished by confinement in the penitentiary for life, or for a term of not less than five years; and when a firearm or other deadly weapon is used or exhibited in the commission of the offense, the punishment shall be death or by confinement in the penitentiary for any term not less than five years."

In his charge to the jury the trial court instructed the jury that in the event they found relator guilty, they should assess a penalty at death or by confinement in the penitentiary for any term not less than five years. No other penalty was submitted. The jury returned the following verdict: "We the Jury find the defendants, Roy Wheat and E. C. Erwin, guilty as charged and assess their penalty in the penitentiary for life. Ad. Michalek, Jr., Foreman."

In accordance with such verdict, the trial court sentenced relator to be confined in the penitentiary for a term of not less than five years nor more than his natural life. Imprisonment in the penitentiary for life was not submitted to the jury as a possible penalty.

While we do not think that the whole of such judgment is void, we do think that the life time punishment was not authorized by statute, and that portion thereof is excessive. The minimum term of five years is valid. See Lee Lim v. Davis, 75 Utah 245, 284 P. 323, 76 A.L.R. p. 461, and many annotations thereunder. It seems to be the rule in a majority of the states of the Union that when a verdict and judgment are excessive...