Moore v. State, 28144
| Decision Date | 07 March 1956 |
| Docket Number | No. 28144,28144 |
| Citation | 287 S.W.2d 674,162 Tex.Crim. 517 |
| Parties | Herman Claude MOORE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Martin & Shown and James J. Shown, Houston, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
Appellant was charged by indictment jointly with others for the offense of robbery with firearms. Severance was ordered and, upon trial, appellant was adjudged to be guilty of robbery with firearms and his punishment was assessed by the jury at 15 years in the penitentiary.
When the case was called for trial appellant objected to the selection of a jury from the regular panel drawn for the week and demanded a special venire. Thereupon the district attorney stated that the State was going to waive the death penalty, and the court made the following ruling:
A jury was then selected from the regular panel and evidence was heard.
The evidence is not before us, but the bill of exception certifies: 'that the only character of assault established by the evidence was an assault made by using and exhibiting a firearm, to wit a rifle to the persons alleged to have been robbed of their money, * * *.'
We notice that the court, in his charge, submitted only the offense of ordinary robbery, the use of firearms not being mentioned and the jury being instructed in the event of conviction to assess the punishment at confinement in the penitentiary for life or for any term of years not less than five.
The punishment authorized by the charge is not applicable to the capital offense of robbery with firearms, but is applicable to ordinary robbery.
We might well conclude from the trial court's ruling and his charge that the waiver by the State was of the capital feature of the indictment, that is that the State waived the allegation as to the use of firearms thereby reducing the offense from robbery with firearms to ordinary robbery. But the jury's verdict, the judgment and sentence would appear to foreclose such conclusion.
The jury returned a verdict finding appellant guilty 'as charged in the indictment',...
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Johnson v. State, 30162
...58 L.Ed. 1231; and Salsburg v. State of Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281, and the cases there cited. Moore v. State, 162 Tex.Cr.R. 517, 287 S.W.2d 674, the latest case relied upon by the appellant, was tried before the effective date of the 1957 amendment of Article 601-A,......
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