Opinion
No. 16877.
Delivered May 30, 1934. Rehearing Denied June 27, 1934.
Sentence Reformed — Jurisdiction.
In felony cases tried by juries alone, the power to fix the punishment is exclusively in the hands of the jury. If the sentence pronounced does not correspond with the punishment so fixed by the jury, Court of Criminal Appeals has power to reform it and make it correspond.
Appeal from the District Court of Comanche County. Tried below before the Hon. R. B. Cross, Judge.
Appeal from conviction for operating an automobile while intoxicated; penalty, confinment in penitentiary for one year.
Reformed and affirmed.
The opinion states the case.
A. B. Haworth, of Comanche, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Under an indictment charging that appellant while intoxicated operated an automobile upon a public road in Comanche County, he was convicted and his punishment assessed at confinement in the penitentiary for one year.
The record is before this court without statement of facts or bills of exception. We notice, however, that in pronouncing sentence against appellant, as well as in the judgment, an error was committed by stating that his punishment would be assessed at confinement in the penitentiary for two years. The verdict of the jury assessed punishment at one year in the penitentiary and prohibited appellant from driving a motor vehicle on the highway for two years.
The judgment and sentence will be reformed to follow the verdict, and as thus reformed, will be affirmed.
Sentence reformed and affirmed.
ON MOTION FOR REHEARING.
Appellant urges error on our part in reforming his sentence, — which had been by the trial court erroneously entered at two years, — so as to make same state the penalty as one year. We reformed the sentence to correspond with the verdict. Appellant urges error on our part in so doing. In felony cases tried by juries alone, under the procedure in this State, the power to fix the punishment is exclusively in the hands of the jury. If the sentence pronounced does not correspond with the punishment so fixed by the jury, this court on appeal has power to reform it and make it correspond. Art. 847, C. C. P.; Holden v. State, 98 Tex.Crim. Rep.; Laudermilk v. State, 47 Tex. Crim. 427; Smiddy v. State, 101 Tex.Crim. Rep.; Hart v. State, 101 Tex.Crim. Rep.; Thurman v. State, 102 Tex. Crim. 76; Williams v. State, 119 Tex.Crim. Rep..
The motion for rehearing is overruled.
Overruled.