DocketNumber: No. 73-2656
Citation Numbers: 489 F.2d 276, 1973 U.S. App. LEXIS 6334
Filed Date: 12/21/1973
Status: Precedential
Modified Date: 11/4/2024
This is an appeal from the denial of a habeas corpus petition, raising the sole question of whether the district court erred in concluding that a 500 year sentence assessed by a jury finding him guilty of murder with malice constituted cruel and unusual punishment in violation of the eighth amendment.
In reviewing appellant’s claim we are governed by the principle that a sentence within the statutory limits will not be upset unless it is so disproportionate to the crime committed that it shocks human sensibilities. Hart v. Coiner, 483 F.2d 136, 139-140 (4th Cir. 1973); United States v. Drotar, 416 F.2d 914, 916 (5th Cir. 1969). Article 1257, Vernon’s Annotated Penal Code (1961) prescribes as a penalty for murder with malice “ . . . confinement in the penitentiary for life or for any term of years not less than two.” The Texas Court of Criminal Appeals has determined that a 500 year sentence is within the statutory prescription. See Yeager v. State, 482 S.W.2d 637 (Tex.Cr.App.1972); see also Sills v. State, 472 S.W.2d 119, 120 (Tex.Cr.App.1971) (1,000 year sentence is within statute).
Affirmed.
. There was no evidentiary hearing in this case and it appears that none was necessary in view of appellant’s contention. The United States Magistrate reviewed the case and made recommendations to the district court. According to the district court’s order the court not only reviewed the findings of the Magistrate but it also reviewed the “pleadings, files and records in this case.”