Stanley v. State , 120 Tex. Crim. 450 ( 1932 )

The criticism of the charge on accomplice testimony is not deemed tenable. The facts and the charge are unlike the case of Oates v. State, 67 Tex.Crim. Rep., 149 S.W. 1194. The charge is not out of harmony with that in the case of Standfield v. State, 84 Tex.Crim. Rep., 208 S.W. 532.

The paragraph in the charge submitting murder with malice aforethought, on the subject of the penalty, contains the following: "* * * then and in that event you will find the defendant guilty of the offense as charged in the indictment and assess the punishment at death or by confinement in the State penitentiary for any terms of years not less than five."

The verdict found the appellant guilty of murder with malice aforethought and assessed against him a penalty of confinement in the penitentiary for a period of ninety-nine years. See Thompson v. State, 91 Tex.Crim. Rep., 237 S.W. 926.

In the charge on murder without malice, the jury was instructed that the conviction would require a penalty of not less than two nor more than five years confinement in the penitentiary. The verdict having assessed against the appellant a penalty of more than five years, the error pointed out is unimportant.

The complaint of the evidence showing the removal of the body of the deceased was sufficiently discussed and proper disposition made thereof in the original opinion.

The judgment and sentence are improperly entered and are hereby reformed so as to condemn the appellant to suffer confinement in the state penitentiary for a period of not less than two nor more than ninety-nine years. See article 775, C. C. P., 1925.

Failing to find any error warranting a reversal of the judgment, the motion for rehearing is overruled save in the matter of the reformation of the judgment and sentence as above indicated.

Judgment and sentence reformed. Rehearing overruled.