Ex Parte Marshall
| Decision Date | 19 November 1913 |
| Citation | 161 S.W. 112 |
| Parties | Ex parte MARSHALL. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Grayson County; W. M. Peck, Judge.
Habeas corpus on petition of Randell Marshall. Remanded.
Spearman Webb and Hamp P. Abney, both of Sherman, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
The statement of facts filed in this cause shows that relator was indicted by the grand jury of Grayson county on August 9, 1913, charged with a violation of article 597 of the Penal Code. A capias was issued by the clerk of the district court on the same day, and appellant was arrested and placed in jail. The validity of this indictment, or the law under which it is drawn, is not questioned in these proceedings. So it may be said that he was legally arrested and confined in jail under a valid indictment. Thereafter, on the 18th day of August, the case went to trial, and the jury returned the following verdict: "We, the jury, find the defendant guilty as charged in the indictment." No term of imprisonment or punishment being assessed or fixed by the jury. On the 13th day of September, 1913, the judge of the district court pronounced sentence on defendant and ordered him incarcerated in the penitentiary for a term not less than one nor more than three years. Relator contends that the verdict and sentence are null and void, and that the laws of this state require that the jury shall assess the punishment to be undergone as well as pass on his guilt or innocence. This brings in review chapter 132 of the acts of the Thirty-Third Legislature, known as the indeterminate sentence law. We will here say that we are passing on the act passed at the regular session of the Thirty-Third Legislature and not the one passed at the special session, and nothing we shall say shall be considered as passing or in any way affecting the validity of the act passed at the special session of the Legislature.
Article 770 of the Code of Criminal Procedure provides that the jury, in their verdict, must find that the defendant is either guilty or not guilty, and in addition thereto they shall assess the punishment in all cases where the same is not absolutely fixed by law to some particular penalty. This is the law of this state, unless this provision of the Code, in so far as felony cases are concerned, was repealed by implication by the provisions of chapter 132 of the regular session of the Thirty-Third Legislature. In this latter act, in section 1, it is provided that when a person is on trial for any felony, except such as are punishable by death, the jury trying said cause shall ascertain whether or not said person is guilty of the offense charged, and, if the death penalty is not assessed, they shall not assess the penalty, and the provisions relating to indeterminate sentences shall apply, and in pronouncing sentence on such person the trial judge shall sentence him to confinement in the penitentiary for a minimum and maximum period; the minimum period being the least number of years affixed by law as punishment for said offense, and the maximum period the maximum term fixed by law.
It is manifest that relator was tried under the provisions of this law, and if the law is valid then the proceedings are regular; if the law, for any reason, is void, then relator has not had a legal trial and the proceedings had on the trial are void. The law is assailed on many grounds, but we do not deem it necessary to discuss all of them. One is that the Constitution of this state requires that the jury shall assess the punishment. In this view the writer does not concur and does not think the law void for this reason. The right of trial by jury was a right guaranteed to our English ancestors and brought with them to this country, and, when we were declared a free and independent people, the right was incorporated in our Constitution, and without a change in the Constitution this right cannot be taken away nor abridged by legislative act. But we do not think the fixing of the penalty by a jury is either implied or guaranteed by the Constitution. It was not so considered by our English ancestors, for, when the right to be tried by a jury was accorded to them, the jury was only called on and permitted to try only the guilt or innocence of the accused, and the judge assessed the penalty. This was so during our colonial days, and when this right to be tried by jury was placed in the federal Constitution in 1776, down to the present time, it has never been construed to embrace the right to have the jury assess the punishment. In our federal courts, operating under this Constitution, to this day, the jury passes simply on the guilt or innocence of the accused, and, if found guilty, the judge assesses the penalty, and this is the rule in many states of this Union, enjoying a Constitution worded, in this respect, the same as is our Constitution. Therefore we are of the opinion that our Constitution, in guaranteeing a trial by jury, does not embrace the right to have the jury assess the penalty as well as pass on the guilt or innocence of one accused of crime. But, if article 770 was not repealed by implication as to felony trials by the aforesaid indeterminate sentence law, the accused has a...
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Bullard v. State
...held that the right to have the jury assess punishment was not part of the right to trial by jury at common law. Ex parte Marshall, 72 Tex.Cr.R. 83, 161 S.W. 112 (1913); Fogg v. Com., 215 Va. 164, 207 S.E.2d 847, 849 (1974); Hunter v. State, 496 S.W.2d 900 (Tenn.1972); Corlew v. State, 181 ......
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Bullard v. Estelle
...afford a right to jury trial on punishment in petitioner's case. Bullard v. State, supra, 548 S.W.2d at 16-21. See Ex Parte Marshall, 72 Tex.Cr.R. 83, 161 S.W. 112 (1913) (no Texas constitutional right). That court's opinion in Bullard was based on a principled consideration of the legal ar......
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Menefee v. State
...it is expressed or from some other written law of the state, and must be regarded as wholly inoperative. Article 6 P.C.; Ex parte Marshall, 72 Tex.Cr.R. 83, 161 S.W. 112."Under the holding of this Court in Ex parte Meyer, 172 Tex.Cr.R. 403, 357 S.W.2d 754, and cases cited, such portion of t......
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Duran v. State
...a jury's determination of an appropriate sentence based upon its evaluation of the evidence and deliberation. In Ex parte Marshall, 72 Tex.Crim. 83, 161 S.W. 112 (1913), the Court of Criminal Appeals addressed whether the Texas Constitution requires “that the jury shall assess the punishmen......