Gerard v. State
| Decision Date | 04 January 1922 |
| Docket Number | (No. 6446.) |
| Citation | 238 S.W. 924 |
| Parties | GERARD v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
G. F. Gerard was convicted of robbery, and sentenced to imprisonment for life, and he appeals. Affirmed.
Geo. W. Dixon, of Houston, for appellant.
E. T. Branch, Cr. Dist. Atty., of Houston, and R. G. Storey, Asst. Atty. Gen., for the State.
Conviction is for robbery. Penalty imprisonment for life.
Appellant was indicted for robbery by assault of J. E. Lyon on February 5, 1921. It was also properly alleged and proven that he had theretofore, in November, 1915, been convicted for a like offense, to wit, the robbery by assault of Henry Burrisk. Under proper instructions the jury found him guilty of the Lyon's robbery, and also found that he had theretofore been found guilty of the Burrisk robbery. The jury fixed no punishment, and were not instructed as to any. Upon the verdict being returned the court entered judgment fixing the punishment at confinement in the penitentiary for life. Article 1327, P. C., fixes the punishment for robbery by assault (not with a firearm) at confinement in the penitentiary for life, or for a term of years not less than five. Article 1619, P. C., provides:
"If it be shown, on the trial of a felony less than capital, that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases."
Article 770, C. C. P., is with reference to verdicts, and the province of the jury; the last sentence in the article being:
"They [the jury] shall assess the punishment in all cases where the same is not absolutely fixed by law to some particular penalty."
When under the law the punishment for murder in the first degree was death absolutely, a verdict finding accused guilty of that offense was sufficient, and the court fixed the penalty in the judgment. Murray v. State, 1 Tex. App. 430; Boothe v. State, 4 Tex. App. 212; O'Connor v. State, 37 Tex. Cr. R. 267, 39 S. W. 368. Upon the findings in the instant case the punishment was "absolutely fixed by law." No discretion was left the jury in the matter. The verdict was sufficient, and the judgment properly entered thereon.
We find in the record what purports to be a bill of exceptions to the refusal of the court to submit the issue of insanity. The trial judge refused the bill with the following notation:
"There being no evidence to raise the issue of insanity in this case, this bill is refused."
The case was tried on March 29, 1921. The bill was not filed until April 15, 1921, and is not sufficient to present an exception taken at the time of the trial. No objections or exceptions in writing were taken to the charge for failure to submit the issue of insanity as required by article 735, C. C. P., before the charge was read to the jury, and no special charge was requested on the subject. This being the condition of the record, we are without authority to review the question sought to be raised.
If there really be a question as to accused's sanity, he is not without remedy. See article 39, P. C., and articles 1017-1030, C. C. P.
No errors appearing from the record of which we can take cognizance, the judgment of the trial court is affirmed.
On Motion for Rehearing.
Appellant insists that the circumstances raised the issue of insanity of the accused at the time the offense was committed, and that it was incumbent upon the court to embrace this issue in his charge to the jury, although there was no request that he do so, and there were no exceptions to the charge because of his failure to do so. Supporting this contention, appellant cites Hierhalzer v. State, 47 Tex. Cr. R. 206, 83 S. W. 836, and other cases.
In the case of Hierhalzer v. State, supra, the evidence raised the issue of temporary insanity. There was no request for its submission to the jury at the time of the trial, nor were there any bills of exceptions reserved to the failure of the court to do so. This failure, however, was complained of in the motion for new trial. The case was decided in the year 1904. At that time an omission in the court's charge of a material character was available upon appeal, although excepted to for the first time in the motion for new trial. This was due to the act of March 12, 1897, amending the old Code, and embraced in White's Code of Crim. Proc. art. 723, p. 549. See Pena v. State, 38 Tex. Cr. R. 333, 42 S. W. 991; also Manning v. State, 46 Tex. Cr. R. 332, 81 S. W. 957, 3 Ann. Cas 867; Keye v. State, 53 Tex. Cr. R. 321, 111 S. W. 400; and other cases in Rose's Notes on Texas Reports, vol. 5, p. 1191. Other articles pertaining to the necessity for and requisites of a charge to the jury are ...
To continue reading
Request your trial
-
Walthall v. State
...See Brittian v. State, 85 Tex. Cr. R. 491, 214 S. W. 351; Stevenson v. State, 89 Tex. Cr. R. 143, 230 S. W. 174; Gerard v. State, 91 Tex. Cr. R. 374, 238 S. W. 924; also Cyc. of Law & Proc. vol. 12, p. 949. The testimony of which complaint is made contribute nothing towards the proof of the......
- Manley v. State
-
Ware v. State, 23769.
...maximum penalty provided therefor in the event of a conviction. See Smith v. State, 131 Tex.Cr.R. 472, 99 S.W.2d 937; Gerard v. State, 91 Tex.Cr.R. 374, 238 S.W. 924. There are bills of exception to certain argument to the jury by the State's attorney. Nowhere in said bills is it shown that......
-
Valenzuela v. State, 24602.
...was fixed by the statute, Art. 62, P.C. No necessity existed, therefore, for the jury to fix punishment in its verdict. Gerard v. State, 91 Tex.Cr. R. 374, 238 S.W. 924; Ware v. State, Tex. Cr.App., 207 S.W.2d Other bills of exception appearing have been examined and are overruled without d......