Manning v. State (145 S.W. 938, 1912)

DAVIDSON, P. J.

Appellant was convicted of carrying on and about his person a pistol; his punishment being assessed at a fine of $200 and 12 months’ imprisonment in the county jail.

A bill of exceptions recites that defendant entered a plea of not guilty to the charge of unlawfully carrying a pistol, as set out in the indictment. The evidence adduced, stated in the bill, was: That the defendant was found, on the night of the 31st day of December, 1910, about 11:15 o’clock, on the gallery of Williams’ store, in the Third ward of the city, of Houston, Harris county, with a pistol in his hand and a box of cartridges in front of him on the gallery, by Mounted Police Officers McDonald and Cain. The testimony of the defendant was that he did have the pistol in his hand, and that he had just borrowed it for the purpose of firing it off at 12 o’clock at night on the 31st day of December, 1910, so as to give an expression of his joy of the passing of the old year and the coming of the new year, and that he had just bought tbe cartridges inside tbe store, and did not baye bis pistol loaded or concealed upon or about bis person, and bad never concealed' or attempted to conceal it. Whereupon tbe court, after bearing tbe above evidence, was of tbe opinion that defendant was guilty as charged in tbe indictment, and tbe court thereupon, over tbe objection of tbe defendant, charged tbe jury to find tbe defendant guilty as charged in the indictment, and assess bis punishment as required by law; and tbe jury, in accordance and compliance with tbe instructions of tbe court, did find defendant guilty, and assessed bis punishment at a fine of |200 and confinement in tbe county jail for a period of ■one year. This bill of exceptions is signed by the judge, without qualification or modification.

The judgment of tbe court recites that appellant pleaded not guilty to tbe charge contained in tbe indictment, and further, that F. F. Fleming and five others were impaneled and sworn, etc. In other words, the judgment recites tbe case was tried by a properly impaneled jury under tbe plea of not guilty. Under this state of case the judge is not authorized to instruct the jury to find a defendant guilty. Tbe only facts we have before us are those recited in tbe bill of exceptions. Under our law tbe jury passes on tbe punishment, and the Constitution confides to that body the right to try and determine tbe case and assess tbe punishment. Tbe court had no right or authority, under the plea of not guilty, to instruct the jury to return a verdict of guilty.

Tbe judgment is reversed, and tbe cause is remanded.