Gray v. State ( 1953 )

On Rehearing.

PER CURIAM.

We have had the benefit of an excellent brief and vigorous oral argument after rehearing granted in the within case.

We are still of the opinion, however, that the error of the trial court in not requiring the jury in specific language in his instructions to make a determination of the amount of punishment to be assessed, in case of a conviction, was not fundamental error. But it was error. No objection was interposed or exception saved, and the error was not presented in motion for new trial or petition in error. The opinion may be referred to for treatment.

But this court has noticed that this kind of error does occur more frequently than it should. We have reconsidered all the evidence and the circumstances presented by the record, and it has now been agreed that the sentence of thirty years imposed by the court should be reduced to fifteen years in the State Penitentiary, and the case as so modified is affirmed.