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72 Tex. Crim. 83

161 S.W 112

Ex Parte Marshall

Court of Criminal Appeals of Texas

Decided November 19, 1913

Court of Criminal Appeals of Texas · decided 1913-11-19

<p>1. —Indeterminate Sentence—Punishment—Jury—Constitutional Law— Void for Uncertainty.</p> <p>The indeterminate sentence law, chapter 132, Act of Thirty-third Legislature, regular session, is wholly void, as the provisions of same are so indefinite that no construction can be given to them that render an enforcement of that law possible. Prendergast, Presiding Judge, dissenting.</p> <p>2. —Same—Case Stated—Verdict not Fixing Punishment.</p> <p>Where defendant was charged with a. violation of article 597, Penal Code, and the jury rendered a verdict finding defendant guilty as charged in the indictment, affixing no punishment and the judge sentenced defendant for a term not less than one nor more than three years in the penitentiary under the indeterminate sentence law, Act of Thirty-third Legislature, regular session, the judgment must be reversed and the cause remanded.</p> <p>3. —Same—Functions of Jury—Punishment—Constitutional Law.</p> <p>The Constitution of this State does not require that the jury shall assess the punishment, but only guarantees the right of trial by jury, and said Act would not be void on this ground; but this is the statutory requirement under article 770, Code Criminal Procedure, which is not repealed by said Act.</p> <p>4. —Same—Statutes Construed—Applies to All Felonies.</p> <p>The indeterminate sentence law, chapter 132, Act of Thirty-third Legislature, regular session, applies to all felonies, and can not be upheld on the ground that it applies only to a certain class of felonies. Prendergast, Presiding Judge, dissenting.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1913-11-19

How this case has been cited

Cited by 16 later decisions — most recently March 2012

14 state decisions

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PRENDERGAST, Presiding Judge.

¶1 I concur in that part of Judge Harper’s opinion holding that the Legislature can by law provide that the jury can pass only on the guilt of an accused and not fix the punishment, and when the jury by their verdict find an accused guilty, the judge alone can fix the punishment.

¶2 I have found much difficulty in arriving at a conclusion on the other’ question,—that is, whether the provisions of chapter 132, approved April 3, 1913, p. 262, are so indefinite as to render the whole Act void. After giving the question much thought and investigation, I think the Act is not void; that taking all its provisions and construing them together, which must be done, the Legislature did not intend to prohibit the jury from fixing the punishment- of such felonies as provide for a fine only, or, in the alternative, a fine or a term in the penitentiary, hut that the intent of the Legislature was that, as to such offenses, the jury by their verdict should assess the punishment, and that the judge in that class of felonies should not alone fix the penalty. I do not care to discuss the question at all.

DAVIDSON, Judge.

¶3 I concur in result reached by Judge Harper that the law is void. It is unnecessary, as I view the matter decided, to express an opinion on other phases of the Act.

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