
    GIBBS v. STATE.
    (No. 3847.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.)
    Criminal Law <&wkey;824r — Instructions as to Penalty — Statute Governing — Necessity of Request.
    Defendant, on trial for a homicide committed before amendment of the murder statute, doing away with the two degrees and prescribing a different penalty, having requested merely that murder be defined as under the old law, and not that the penalty be charged thereunder, it was not error, under Pen. Code 1911, ■ arts. 15, 17, as to change in penalty after commission of an offense, to charge as the penalty for murder in the first degree, of which defendant was convicted, the penalty for murder prescribed by the new statute.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. <&wkey;> 824.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Will Gibbs was convicted, and appeals.
    Affirmed.
    Kahn & Williams, of Houston, for appellant. John H. Crooker, Criminal Dist. Atty., T. J. Harris', and E. T. Branch, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

From a conviction of murder with 50 years in the penitentiary as the punishment, appellant prosecutes this appeal.

There is no statement of facts, and but one bill of exceptions. The indictment charged that the offense of murder was committed before the amendment to our murder statute doing away with the two degrees and fixing a different penalty for those degrees was in force. In so far as the elements of the offense was concerned, the court’s charge was under the old law, but, in telling the jury the penalty for murder in the first degree, gave the punishment now fixed for murder by the new statute. No objection was made to the charge of the court at the time on that ground, but he complained of this feature of the charge first in his motion for a new trial. The jury found him guilty of murder in the first degree and assessed his punishment as stated. The court in approving appellant’s bill on this subject modified and explained it as follows:

“The murder for which the defendant was indicted was. prior to the act of the Legislature abolishing the degree of murder. The court inquired of counsel for the defendant, after the conclusion of the evidence, whether they desired the court to define murder under the old law, that is to say, define the two degrees of murder, or whether he would define murder as it is now defined by the statutes.
“The court did not, as counsel says, ask the counsel if he desired him to charge the penalty under the old law of murder in the first or second degree, nor was any such suggestion made by the court, nor by the counsel representing the defendant. In answer to the court's inquiry, counsel suggested that they would prefer that murder be defined as under the old law, that is, to define both degrees of murder. Counsel did not at that time or at any other time request the court to charge the penalty as it stood under the two degrees.”

The court’s charge as to the penalty is therefore correct, and appellant’s bill presents no error. P. C. arts. 15, 17; Maul v. State, 25 Tex. 166; Haynes v. State, 2 Tex. App. 84; Allen v. State, 7 Tex. App. 300; Noftsinger v. State, 7 Tex. App. 320; Veal v. State, 8 Tex. App. 474; Rich v. State, 9 Tex. App. 176; McInturf v. State, 20 Tex. App. 335; Howard v. State, 35 Tex. Cr. R. 136, 32 S. W. 544; Kendall v. State, 55 Tex. Cr. R. 139, 114 S. W. 833; Ybarra v. State, 73 Tex. Cr. R. 70, 164 S. W. 10, and cases therein cited; Echols v. State, 170 S. W. 792; Castillo v. State, 172 S. W. 789. Other recent cases to the same effect might be cited hut we deem it unnecessary.

The judgment is affirmed.  