Augustine was convicted of robbery with a deadly weapon, and by the jury sentenced to death. He appeals.
We have searched the record in vain for some ground on which to reverse the conviction. We use the expression, "searched," because we have felt it our duty to reverse the case if we could find grounds for so doing. Infliction of the death penalty under the facts of this case constitutes, as a matter of fact although not as a question of law, cruel and inhuman treatment. The jury had power to inflict that penalty, and we cannot disturb that action unless the record discloses some other error justifying us in so doing. This is a court of review. Our power is limited in this case to passing upon errors disclosed by such review. We have no power to pardon offenses or commute sentences. The only error in this record sufficiently serious to call for a reversal was the granting of an instruction to the State under which the jury was told to find that the accused had used a deadly weapon, if it found him guilty at all. Ordinarily that would be ground for reversal in this case. However, this was neutralized and cured by instructions properly granted the defendant, informing the jury that even if it did find defendant guilty of robbery, it should not find that the robbery was with a deadly weapon unless the evidence convinced the jury of that fact beyond a reasonable doubt. It is with great reluctance, therefore, that we are compelled to affirm the conviction and sentence.
Affirmed, and Thursday, May 15, 1947, set for the date of execution. *Page 741