
    GERARD v. STATE.
    (No. 6446.)
    (Court of Criminal Appeals of Texas.
    Jan 4, 1922.
    Rehearing Denied March 29, 1922.)
    1. Criminal law <&wkey;>l202(5) — Verdict need not fix penalty for second conviction of robbery by assault.
    Under Ren. Code 1911, art. 1619, providing that, where defendant, charged with a felony less than capital, has been before convicted of the same offense, the punishment on the second conviction shall be the highest which is affixed to the commission of such offense in ordinary cases, and article 1327, fixing the punishment for robbery by assault at imprisonment for life or for a term of years not less than five, the punishment for robbery by assault after a previous conviction fpr the same offense is absolutely fixed by law within Code Or. Proc. 1911, art. 770, so that a verdict of guilty without fixing any penalty was sufficient.
    2. Criminal law <&wkey;l092(4) — Bill of exceptions held not to present exception taken at time of trial.
    Where a purported bill of exceptions in a case which was tried on March 29th was not filed until April 15th, it is not sufficient to present any exception taken at the time of the trial.
    
      On Motion for Rehearing.
    3. Criminal law &wkey;>l056(2) — Failure to charge on issue of insanity cannot be reviewed without exception to the charge.
    Under Vernon’s Ann. Code Cr. Proc. 1916, containing articles 735, 737, 743, as amended •by Acts 1913, c. 138, which prevent review of the charge unless exceptions thereto were taken when, it was submitted to counsel before being read to the jury, the failure of the court to charge on the issue of insanity cannot be reviewed in the absence of any exceptions to the charge, though it could have been reviewed without such exceptions under prior statutes.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    G. P. Gerard was convicted of robbery, and sentenced to imprisonment for life, and he appeals.
    Affirmed.
    Geo. W. Dixon, of Houston, for appellant.
    , E. T. Branch, Cr. Dist. Atty., of Houston, and R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for robbery.' Penalty imprisonment for life.

Appellant was indicted for robbery by assault of J. E. Eyon 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 Dyon’s robbery, and also found that he had theretofore been found guilty of the Bur-risk 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. O. 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 Tex. App. 430; Boothe v. State, 4 Tex. App. 212; O’Connor v. State, 37 Tex. Cr. R. 267, 39 S. W. 368. Upon the findings in the instant ease 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 ease was tried on March 29, 1921. The bill was not filed until April 15, 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 article 39, P. C., and articles 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.

On Motion for Rehearing.

MORROW, P. J.

Appellant insists that the circumstances raised the issue of insanity of the accused at the time the offense was committed, and that it was incumbent upon the court to embrace this issue in his charge to the jury, although there was no request that he do so, and there were no exceptions to the charge because of his failure to do so. Supporting this contention, appellant cites Hierhalzer v. State, 47 Tex. Cr. R. 206, 83 S. W. 836, and other cases.

In the case of Hierhalzer v. State, supra, the evidence raised the issue of temporary insanity. There was no request for its submission to the jury at the time of the trial, nor were there any bills of exceptions reserved to the failure of the court to do so. This failure, however, was complained of in the motion for new trial. The case was decided in the year 1904. At thft time an omission in the court’s charge of a material character was available upon appeal, although excepted to for the first time in the motion for new trial. This was due to the act of March 12,'1897, amending the old Code, and' embraced in White’s Code of Crim. Proc. art. 723, p. 549. See Pena v. State, 38 Tex. Cr. R. 333, 42 S. W. 991; also Manning v. State, 46 Tex. Cr. R. 332, 81 S. W. 957, 3 Ann. Cas. 867; Keye v. State, 53 Tex. Cr. R. 321, 111 S. W. 400; and other cases in Rose’s Notes on Texas Reports, vol. 5, p. 1191. Other articles pertaining to the necessity for and requisites of a charge to the jury are articles 715 to 722, as set out in White’s Code of Crim. Proc., supra.

Article 715 as therein contained corresponds with the present article 735; the present article 737 corresponds with the old article 717; and the present article 743 corresponds with the old article 723. These articles were amended by the act of 1913, c. 138, p. 278. See, also, articles in Vernon’s Texas Crim. Statutes, vol. 2, p. 525.

The decisions of this court which hear upon the charge of the court, to be understood, must necessarily he read in the light of the statutes in force at the time of the trial to which the decision relates. Por example: At one time it was imperative that the charge “distinctly set forth the law applicable to the case,” and when it failed to do so, and an exception was made at the time the charge was read to the jury, a reversal was required as a matter of course. Marshall v. State, 40 Tex. 200. If, however, the exception to it was not then made, but was embraced in the motion for new trial, it was still available upon appeal. In such case, however, the materiality of the error was a matter for consideration, and a reversal did not follow as a matter of course. Bishop v. State, 43 Tex. 390; and other cases illustrating both of these rules are found in White’s Code of Crim. Proe. p. 550, § 845. The effect of article 723 was to abrogate the rule requiring a reversal without reference to the effect of the omission in the charge and to require an inquiry as to whether it was calculated to injure the rights of the accused. Under the amendment of 1913, to which we have adverted, it is too late to complain of an omission in the charge upon motion for new trial or on appeal. That statute requires the court, before he reads his charge to the jury, to submit it to the counsel for the accused and give sufficient time for its examination, and makes it imperative that the accused, after his examination and before the charge is read to the jury, to present to tbe court his objections thereto, to the end that it may be corrected if so desired. See Vernon’s Tex. Crim. Stat. vol. 2, p. 525, and cases there cited.

Under the present statute this court has no right to review a supposed error in the trial court in omitting to submit to the jury the issue of insanity when no complaint was made of the failure to do so at the time of the trial. It follows therefore that, if there was an issue of insanity raised by the evidence in the instant case, failure of the court to charge the jury upon the subject not having been complained of before- the charge was read to the jury, it cannot be considered by" this court upon appeal.

The motion for rehearing is therefore overruled. 
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