Thompson v. State , 91 Tex. Crim. 234 ( 1922 )

For the first time on motion for rehearing our attention is called to the fact that the trial judge committed an error in charging the penalty. No exception was filed calling the court's attention to the mistake at the time the charge was submitted for inspection, and no mention is made of it in the motion for new trial. Article 1327 P.C. (Acts 1895) fixes the punishment for robbery where firearms or deadly weapons are used at "death, or by confinement in the penitentiary for any term not less than five years." Prior to the amendment of 1895 the punishment in such cases was by "imprisonment in the penitentiary for life or for a term not less than five years." The court charged the penalty to be "death, or by confinement in the penitentiary for life, or for any term not less than five years." It is urged that because the court erroneously inserted "for life" in the charge on the penalty the case must be reversed. We are cited to Gardenhire v. State, 18 Texas Crim. App. 565 as authority for the proposition. It is one of a long line of cases which held that any mistake as to the penalty would cause a reversal although the error was in behalf of the defendant. (See also to the same effect Howard v. State, 18 Texas Crim. App. 348; Wilson v. State, 14 Texas Crim. App. 524; Bouldin v. State, 8 Texas Crim. App. 624; Buford v. State, 44 Tex. 525.) That line of cases has long ago been abandoned by our court as may be seen by an examination of the authorities collated under Sec. 644 Branch's Anno. P.C. in which he states the rule to be that, "The charge of the court is not reversibly erroneous because the penalty is misstated if the accused was awarded the minimum punishment."

There is another line of authorities turning upon the construction and application of Article 743, C.C.P., notably Manning v. State, 46 Tex.Crim. Rep.; Graham v. State,73 Tex. Crim. 28, 163 S.W. Rep. 726; Clayton v. State,78 Tex. Crim. 165; Grider v. State, 82 Tex.Crim. Rep., 198 S.W. Rep. 579. In Manning's case a mistake was made in the minimum punishment. The penalty provided by the law was not less than two nor more than ten years. The jury were told it was not less than five nor more than ten. The punishment was fixed at seven years. The judgment was affirmed over a dissenting opinion. The correctness of the decision was questioned in Clayton's case. By citing the Manning case we do not wish to be understood as committing ourselves to the correctness of the announcement in the particular mentioned.

We are not inclined to go back to the old line of decisions and hold that a mistake in charging the penalty is such a fundamental error that a reversal will necessarily follow regardless of the nature of the mistake. We however are inclined to the view that a mistake as to the penalty is such an error as that no matter when raised, we should consider it, and that the spirit of Article 743 C.C.P. should control, and this court determine whether any injury could or did result from the error.

Examining the instant case we have been unable to determine how any possible injury resulted to appellant from the mistake in the court's charge. If his punishment had been assessed by the jury at confinement in the penitentiary for life, (the present statute not authorizing that punishment) we would have an entirely different question before us. The court was correct in the minimum and maximum punishment given to the jury. The mistake occurred in inserting an intermediate punishment not authorized by the law. The jury believed, and were authorized in reaching the conclusion under the evidence, that the crime committed by appellant was of such a character that the maximum punishment of death should be inflicted, and passed over the unauthorized intermediate punishment. On account of the severity of the penalty inflicted we have been at some pains to investigate the question raised on motion for rehearing, and unless we felt fully assured as to the correctness of our holding we would not permit the conviction to stand.

We cannot see how the inadvertent insertion of "for life" in the penalty could in any way have influenced or been responsible for the death penalty assessed. The jury declined to assess the penalty at a term of years, evidently believing the offense called for nothing less than the extreme punishment.

Believing it was fully authorized under the evidence, and that the mistake in the court's charge could in no way have harmfully affected appellant's rights in the jury's consideration of his case, we are of opinion the motion for rehearing should be overruled.

Overruled.