128 S.W.2d 813 | Tex. Crim. App. | 1939
Lead Opinion
The offense is assault with intent to murder; the punishment, confinement in the penitentiary for two years.
The term of court at which appellant was tried adjourned without appellant having entered into a recognizance on appeal. On the 29th of November, 1938, appellant, as principal, together with his sureties, made and entered into an appeal bond in the sum of $750, which was approved by the sheriff alone on the 30th day of November, 1938. The bond failed to show the approval of the trial judge, as required by Article 818, C. C. P. In this respect it is fatally defective. Hence this court is without jurisdiction. Lamb v. State,
The appeal is dismissed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *156
Addendum
The record having been perfected, the appeal is reinstated and the case considered on its merits.
The court submitted assault with intent to murder with malice as well as assault with intent to murder without malice. The verdict of the jury was as follows:
"We the jury find the defendant, Otho Pleasant, guilty of an assault with intent to murder, and assess his punishment at confinement in the state penitentiary for two years."
In pronouncing sentence, the court decreed that appellant should be confined in the penitentiary for a term of not less than two years nor more than two years.
Art. 775, C. C. P., as amended by Chap. 207, Acts of the 42nd Legislature at its Regular Session, reads, in part, as follows:
"If the verdict fixes the punishment at confinement in the penitentiary for more than the minimum term, the judge in passing sentence shall pronounce an indeterminate sentence, fixing in such sentence as the minimum the time provided by law as the lowest term in the penitentiary and as the maximum the term stated in the verdict."
In Callaway v. State,
The judgment is reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.