116 S.W. 1146 | Tex. Crim. App. | 1909
Appellant was indicted in the District Court of Martin County on a charge of assault with intent to murder, and his punishment assessed at confinement in the house of correction and reformatory for a period of two years.
The evidence in the case very clearly raises the issue of appellant's age, and the weight of the testimony seems to indicate that he was less than sixteen years old. The verdict of the jury is in this language: "We, the jury, find the defendant guilty as charged in the indictment and assess his punishment at two years confinement in the house of correction and reformatory." In the court's charge we find the following: "If you find from the evidence that defendant is not more than sixteen years old, you will assess his punishment at confinement in the house of correction and reformatory for a term of not less than two nor more than fifteen years. But if you find from the evidence that defendant is more than sixteen years old, you will assess his punishment at confinement in the State penitentiary for a term of not less than two nor more than fifteen years." Appellant makes the point that the judgment of conviction must be set aside on the ground that it is not stated and found in express terms in the verdict of the jury as a fact that appellant was not over sixteen years of age, and that, therefore, the verdict and judgment must be set aside. This contention is clearly supported by the case of Watson v. State,
Reversed and remanded.