McCoy v. State
| Decision Date | 22 March 1939 |
| Docket Number | No. 20282.,20282. |
| Citation | 126 S.W.2d 487 |
| Parties | McCOY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Harrison County; W. H. Strength, Judge.
Edmund McCoy was convicted of an assault with intent to rape, and he appeals.
Reversed and remanded.
Percy Woodard, of Marshall, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The appellant was convicted of an assault with intent to rape on Armale Anderson, and awarded a punishment of two years in the penitentiary.
We have read the statement of facts with care, and are impressed with the conclusion that the facts are sufficient to sustain the verdict of the jury.
We find, however, that a serious question presents itself relative to the verdict of the jury. We copy the same:
We note from the record that no request for a suspended sentence appears therein, and that the court did not refer to same in his charge to the jury. We also note that, although the verdict of the jury is embodied in the judgment, nevertheless in the appellant's sentence he was sentenced to be confined in the penitentiary for a term of two years, no notice being taken of the jury's recommendation for a suspended sentence. The verdict of the jury is not responsive to the charge of the court, and should not have been received by the court. Under the facts and pleadings in this cause appellant, not having asked for a suspended sentence, could not have received such, and the jury had no right to thus recommend. The trial court had no right to accept such a verdict; and after having accepted the same, it had no right to thus disregard a portion thereof and accept a portion of such verdict.
It is now the settled law of this State that where a jury recommends a suspended sentence, when the issue was not submitted to them, the trial court improperly received such verdict, and improperly entered a judgment ignoring such a recommendation. That such was not the holding of this court at an earlier date is borne out by the cases of Barnett v. State, 64 Tex.Cr.R. 619, 170 S.W. 143; Speer v. State, 75 Tex.Cr.R. 348, 171 S.W. 201, and Bessett v. State, 78 Tex. Cr.R. 110, 180 S.W. 249, but these cases have in effect been overruled in Champion v. State, 113 Tex.Cr.R. 172, 19 S.W.2d 63, Pritchard...
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State v. McPherson
...135 Tex.Crim. 71, 117 S.W.2d 800 (App.1938); Garrett v. State, 159 Tex.Crim. 203, 262 S.W.2d 414 (App.1953); McCoy v. State, 136 Tex.Crim. 473, 126 S.W.2d 487 (App.1939); and, Chambless v. State, 67 S.W.2d 309 (Tex.Cr.App.1934), the Court of Appeals held the submission of the fourth punishm......
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State v. McPherson
...repeatedly applied by the Court of Criminal Appeals. Garrett v. State, 159 Tex.Crim. 203, 262 S.W.2d 414 (1953); McCoy v. State, 136 Tex.Crim. 473, 126 S.W.2d 487 (1939); Chambless v. State, 125 Tex.Crim. 188, 67 S.W.2d 309 Parenthetically, we note that Tex.Code Crim.Proc.Ann. art. 37.10(b)......
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Harrison v. State, 27708
...to the issues. 42 Tex.Jur., Sec. 359, p. 457. The court, however, cannot render a verdict or any part thereof. In McCoy v. State, 136 Tex.Cr.R. 473, 126 S.W.2d 487, the jury recommended a suspended sentence, though no application had been filed and no such issue had been submitted to them. ......
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Johnson v. State, 23611.
...a suspended sentence where the issue is not submitted in Ex parte Edwards, 125 Tex.Cr.R. 188, 67 S.W.2d 308, and McCoy v. State, 136 Tex.Cr.R. 473, 126 S.W.2d 487. The course pursued by the court in the present case anticipated what might occur, and reached the same It is noted that accordi......