Summary
In Thompson v. State, 226 S.W.2d 872 (Tex.Cr.App.), the defendant on direct appeal complained of a failure in the record to show a consent in writing by the State's attorney to a waiver of a jury as required by Art. 10a, V.A.C.C.P. (1925) (Art. 10a, supra, was amended in 1959 resulting, with minor changes, in Art. 1.13, V.A.C.C.P.). The absence of a written consent signed by the State was held in Thompson to constitute reversible error.
Summary of this case from Lawrence v. StateOpinion
No. 24651.
February 15, 1950.
1. — Judgment — Lack of Certainty — Void.
A judgment against appellant, accused of assault with intent to rape, which assesses the punishment at confinement in the penitentiary for a period of "2 to 10 years" is void for want of certainty.
2. — Jury Waiver — Written Consent — State's Attorney — Prerequisite.
The filing of the written consent of the attorney for the state to the waiver of a jury is a prerequisite to a trial without a jury in a felony case.
Assault With Intent To Rape. Appeal from district court of Travis County; penalty, confinement in penitentiary for a period of "2 to 10 years."
Hon. Chas. O. Betts, Judge Presiding.
Reversed and Remanded.
No attorney of record on appeal for appellant.
George P. Blackburn, State's Attorney, Austin, for the state.
Appellant was charged by indictment with the offense of assault with intent to rape. He entered a plea of guilty and waived a trial by jury.
There are no bills of exception in the record, and no statement of facts showing the evidence offered on the trial of the case.
An examination of the record discloses that the punishment of appellant was assessed by the court at confinement in the penitentiary for a period of "2 to 10 years."
The judgment is void for want of certainty as to the punishment assessed. See Ex Parte Traxler, 147 Tex.Crim. R., 184 S.W.2d 286; Edwards v. State, 153 Tex.Crim. R., 219 S.W.2d 1022; and Ex Parte East, No. 24,705, 154 Tex. Crim. 123.
The record fails to show the consent in writing of the attorney for the state to the waiver of a jury as required by Art. 10a, Vernon's Ann. C.C.P. The filing of such written consent is a prerequisite to a trial without a jury in a felony case.
The judgment is reversed and remanded.
Opinion approved by the court.