Conviction is for robbery. Penalty imprisonment for life.
Appellant was indicted for robbery by assault of J.E. Lyon on February 5, 1921. It was also properly alleged and proven that he had theretofore in November, 1915, been convicted for a like offense, to-wit: the robbery by assault of Henry Burrisk. Under proper instructions the jury found him guilty of the Lyon's robbery, and also *Page 375 found that he had theretofore been found guilty of the Burrisk robbery. The jury fixed no punishment, and were not instructed as to any. Upon the verdict being returned the court entered judgment, fixing the punishment at confinement in the penitentiary for life. Article 1327, P.C., fixes the punishment for robbery by assault (not with a firearm) at confinement in the penitentiary for life, or for a term of years not less than five. Article 1619, P.C., provides: "If it be shown, on the trial of a felony less than capital, that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases." Article 770, C.C.P., is with reference to verdicts, and the province of the jury; the last sentence in the article being: "They (the jury) shall assess the punishment in all cases where the same is not absolutely fixed by law to some particular penalty." When under the law the punishment for murder in the first degree was death absolutely, a verdict finding accused guilty of that offense was sufficient, and the court fixed the penalty in the judgment. Murray v. State, 1 Texas Crim. App. 430; Boothe v. State, 4 Texas Ct. App. 212[4 Tex. Crim. 212]; O'Connor v. State, 37 Tex. Crim. 267. Upon the findings in the instant case the punishment was "absolutely fixed by law." No discretion was left the jury in the matter. The verdict was sufficient and the judgment properly entered thereon.
We find in the record what purports to be a bill of exceptions to the refusal of the court to submit the issue of insanity. The trial judge refused the bill with the following notation: "There being no evidence to raise the issue of insanity in this case this bill is refused." The case was tried on March 29th, 1921. The bill was not filed until April 15th, 1921, and is not sufficient to present an exception taken at the time of the trial. No objections or exceptions in writing were taken to the charge for failure to submit the issue of insanity as required by Article 735 C.C.P. before the charge was read to the jury, and no special charge was requested on the subject. This being the condition of the record we are without authority to review the question sought to be raised.
If there really be a question as to accused's sanity he is not without remedy. See Art. 39 P.C., and Arts. 1017-1030 C.C.P.
No errors appearing from the record of which we can take cognizance, the judgment of the trial court is affirmed.
Affirmed.
ON REHEARING. March 29, 1922.