191 S.W.2d 731 | Tex. Crim. App. | 1946
Relator was convicted in our Cause No. 21151 of robbery by assault and sentenced to serve ten years in the state penitentiary. This cause was appealed to this court and by it affirmed, see
The contention that the judgment and sentence failed to follow the verdict of the jury was a matter that should have been reached and called to our attention on the appeal of our Cause No. 21151, at which time, if necessary, such matters could have been corrected. A writ of habeas corpus cannot be used to serve the purpose of an appeal. See Branch's Penal Code, p. 151, and many cases there cited. Ex parte Crawford,
It seems that under the facts, and the charge of the court in the original cause, relator was charged with a robbery by assault, and the exhibition therein of a firearm, the same being a deadly weapon. The punishment for an assault being confinement in the penitentiary for life, or any term of years not less than five; and the punishment for an assault in which a deadly weapon was exhibited being by death, or confinement in the penitentiary for any term not less than five years. Relator's sentence came within a period reached by the commission of robbery by assault, and by such an assault coupled with the use of a deadly weapon. We do not think the judgment and sentence in Cause No. 21151 were void; it could be applied to either method of committing the robbery, and if relator was dissatisfied therewith, he should have evidenced such upon his appeal therein; he did not do so, and such cannot now be the basis of a writ of habeas corpus.
Relator is therefore remanded to the custody of the penitentiary authorities for the purpose of serving the remaining portion of his original sentence in our Cause No. 21151 in accordance with the law governing such matters. *88