Grider v. State

• Decision Date: 07 November 1917
• Docket Number: (No. 4667.)
• Citation: 198 S.W. 579
• Parties: GRIDER v. STATE.
• Court: Texas Court of Criminal Appeals

198 S.W. 579

GRIDER v. STATE.

(No. 4667.)

Court of Criminal Appeals of Texas.

November 7, 1917.

Rehearing Denied November 28, 1917.

Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.

Shorty Grider was convicted of cow theft, and he appeals. Judgment affirmed.

Mays & Mays, of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

The grand jury of Dallas county indicted appellant for cow theft, alleged to have been committed November 3, 1916. He was tried on May 23, 1917, found guilty, and his punishment assessed at 3 years in the penitentiary. The court gave a charge which was in no way objected to by appellant during the trial, or before the charge was read to the jury, or before the verdict was rendered and the jury discharged. In the charge the jury were told that, if they found him guilty, they could assess his punishment at confinement in the penitentiary "for any term of years not less than two nor more than five years." The statute (article 1354, P. C.) prescribes the punishment for this offense "by confinement in the state penitentiary not less than two nor more than four years."

There is no statement of facts in this case, neither is there any bill of exceptions. After the trial was concluded, and the jury discharged, appellant made a motion for a new trial on this ground:

"The court improperly instructed the jury as to the punishment in said cause."

This motion was not called to the attention of the court nor passed upon until the following Monday, May 28th, four days after the trial. Of course, as soon as the case was tried and the verdict rendered, the jury and witnesses were discharged, and, no doubt, all the witnesses had scattered and gone. The sole question is whether the mistake made by the judge in his charge as to the maximum number of years at which the jury could assess his punishment, under the circumstances and the law as it now is, presents reversible error.

Under the decisions of this court, the question has been expressly held against appellant. In Manning v. State, 46 Tex. Cr. R. 332, 81 S. W. 960 , Manning was tried for perjury, found guilty, and his punishment assessed by the jury at seven years in the penitentiary. This court in that case held:

"The court charged the jury that the punishment for perjury was not less than five nor more than ten years. This was error. The punishment since the Twenty-Fifth Legislature (see Acts 1897, p. 146) has been not less than two nor more than ten years in this character of perjury. However, appellant cannot avail himself of this error. It is not presented by bill of exceptions, nor did he reserve it in motion for new trial. He insists on it for the first time in this court. This, under the authorities, he cannot do. Code Cr. Proc. art. 723; Barnett v. State, 42 Tex. Cr. R. 302 ; Pena v. State, 38 Tex. Cr. R. 333 ; Magee v. State, 43 S. W. [98, 512]; Abbott v. State 57 S. W. 97; Spears v. State 56 S. W. 347. The jury fixed the penalty at seven years' confinement in the penitentiary, which was within the punishment prescribed by the Legislature."

The question again came up in Robbins v. State, 57 Tex. Cr. R. 9, 121 S. W. 505, wherein this court in a unanimous opinion rendered by Judge Ramsey held:

"Complaint was made that the court erred in his charge to the jury in instructing them with reference to the penalty to be assessed by them, for the reason that under the act of the Thirtieth Legislature the law had been repealed and the punishment changed. The punishment was indeed changed by the act of the Thirtieth Legislature. The offense was in no sense repealed, and stands practically unchanged by the law and as it was aforetime. It is true that the penalty for this offense was changed by act of the Thirtieth Legislature, which imposed a severer punishment for an infraction of the law than that which had theretofore existed. We have held, however, uniformly since the rendition of the decision in Manning v. State, 46 Tex. Cr. R. 326, 81 S. W. 957 , that it is not reversible error where the charge misdirects the jury in respect to the punishment, unless excepted to at the time or the matter was challenged in the motion for new trial. This (Manning Case) was a perjury case, in which the court gave a higher minimum punishment than the law authorized. This decision has been repeatedly followed in this state and is the recognized rule among us."

In Gantt v. State, 105 S. W. 800, in another unanimous opinion of this court by Presiding Judge Davidson, it was held:

"As article 723, White's Ann. Code Cr. Proc., has been construed by this court, these questions cannot be considered, having been raised for the first time in this court. See Manning v. State, 46 Tex. Cr. R. 326, 81 S. W. Rep. 957 , where the question was discussed and authorities cited. In the Manning Case the charge erroneously stated the punishment, and one that had been repealed by the Legislature some time prior to the Manning trial; but no exception was taken in the trial court, and it was held that it was too late to except to error for first time on appeal."

These decisions, and especially the Manning Case (on other points) have been many times cited since their rendition and at no time...