Dosh v. State (161 S.W. 979, 1913)

PRENDERGAST, P. J.

The appellant was convicted of robbery, and his punishment fixed at five years in the penitentiary— the lowest prescribed by law.

The statement of facts and bills of exceptions were filed in the court below 159 days after the adjournment of the court at which appellant was tried. Upon the motion of the Assistant Attorney General both the statement of facts and all the hills of exceptions are struck out, as 90 days is the longest time after adjournment in which either can be filed.

There is hut one question which can be considered, in the absence of a statement of facts and bills of exceptions. The indictment properly charged robbery, and in order to authorize the jury to assess the death penalty, it further charged that the robbery was committed by using and exhibiting deadly weapons. The verdict of the jury was: “We, the jury, find the defendant guilty as charged in the indictment and assess his punishment at five (5) .years’ confinement in the penitentiary.” Appellant contends that this verdict is invalid, and the judgment must be set aside because it does not find of what degree of robbery appellant was guilty. There are no degrees of robbery. Robbery, however committed, is only one offense. If the state seeks to inflict capital punishment, it is necessary to allege that the robbery was committed by exhibiting a firearm or deadly weapon; and, unless this is alleged, the jury cannot inflict the death penalty. The verdict in this case was clearly sufficient. Green v. State, 147 S. W. 594.

There is no other question raised which can be considered in the absence of a statement of facts and bills of exceptions.

The judgment is therefore affirmed.