Terretto v. State

On State’s Motion for Rehearing.

. The judgment herein was reversed at a previous term of this court. The state filed within due time a motion for rehearing. The reversal was on account of the insufficiency of the evidence.

[3] Attention is called to the fact that the case was'tried upon a plea of guilty regularly entered with the formalities and under circumstances required by the statute. The penalty for the offense charged was confinement in the state penitentiary for not less than one nor more than three years. Article 566, Vernon’s O. G. P., is as follows:

“Where a defendant in a case of felony persists in pleading guilty, if the punishment of the offense is not absolutely fixed by law, and beyond the discretion of the jury to graduate in any manner, a jury shall be impaneled to assess the punishment and evidence submitted to enable them to decide thereupon.”

The evidence developed on the trial showed that appellant had sold intoxicating liquor in the city of Houston, and the indictment set out in detail the ordinance of the city of Houston fixing the boundaries beyond which ■such liquors might not be sold. The appellant having pleaded guilty to the commission of the offense, and there being evidence that he had sold intoxicating liquors, we think he is not in a position to complain that the evidence was not sufficiently specific in showing his guilt.

[4] The statute above quoted is expressly declared to be for the purpose of enabling the jury to determine the amount of his punishment. In those cases in which, even in a felony, he enters a plea of guilty, the jury, it seems, may assess his punishment without evidence where the law absolutely fixes the punishment,. leaving the jury no discretion as to the extent thereof. In this instance the evidence introduced was sufficient to have efiabled the jury to determine that appellant on his plea of guilty should receive the lowest punishment provided by law. Under the rule of this court in the case of Doans v. State, 36 Tex. Or. R. 468, 37 S. W. 751, Shelton v. State, 30 Tex. 431, Woodall v. State, 58 Tex. Cr. R. 513, 126 S. W. 592, and Josef v. State, 33 Tex. Cr. R. 251, 26 S. W. 213, the action of this court reversing the judgment for the insufficiency of the evidence was erroneous.

Adhering to the ruling of the original opinion sustaining the validity of the ordinance set out in the indictment, the motion for rehearing is granted, the judgment reversing and remanding the cause set ¿side, and the judgment is now affirmed.