Alonzo v. State (36 S.W.2d 764, 1931)

MORROW, P. J.

The -offense is murder; penalty assessed at confinement in the penitentiary for life.

The record .is before this court without statement of facts or bills of exception, and the time allowed for their preparation and filing has expired.

A plea of former jeopardy was presented to the court and overruled. The judgment overruling the plea recites that evi-denee was heard by tbe court before passing upon tbe motion. Tbe action of tbe trial court in overruling tbe plea is not properly before tbis court for review. We learn, however, from tbe motion for new trial and tbe controverting affidavit attached thereto that in presenting the plea of former .ieopardy reliance was bad upon tbe fact that tbe accused bad been indicted and tried for tbe same offense in March, 1929, and bad been found guilty; that the penalty assessed against him was confinement in tbe penitentiary for life, but because of tbe insufficiency of tbe indictment tbe case was reversed on appeal. . See Alonzo v. State (Tex. Cr. App.) 26 S.W.(2d) 920. Tbe indictment last mentioned was dismissed in tbe trial court, but a new indictment was returned by tbe grand jury, upon which indictment tbe present conviction is based. Tbe contention made by tbe appellant is not variant from that overruled by tbis court in tbe case of Herrera v. State, 36 S.W.(2d) 515.

In the motion for new trial and tbe controverting affidavit it was made to appear that preliminary to tbe present trial tbe district attorney agreed that if tbe accused would enter a plea of guilty .the jury would be requested by tbe state’s attorney to assess a penalty not to exceed eight years’ confinement in tbe penitentiary; that tbe accused was unable to speak tbe English language and was beard through an interpreter, who, responding to an inquiry of the court as to tbe plea of tbe appellant, interpreted .the appellant as indicating a plea of not guilty; and that the trial was bad upon that plea. That there was assessed against tbe appellant upon tbe trial a higher penalty than eight years’ confinement in tbe penitentiary can, under tbe facts, avail him nothing upon this appeal.

In tbe motion for new trial and the controverting affidavit of tbe state’s attorney there is reference to tbe absence of some witnesses. The subject is one which cannot be reviewed, as there is apparently no application for a continuance. Even if there were .one, there is no bill of exception complaining of tbe action of tbe court in overruling it. However, tbe averment in tbe mo- ' tion for new trial makes it manifest that tbe evidence expected from tbe witnesses was such, as a matter of law, as would not have produced a more favorable result to tbe accused. None of tbe matters, however, are in such condition as to demand a discussion or warrant a reversal of the judgment. From tbe record, as it appears here, it is manifest that the accused had a fair and impartial trial.

In entering tbe judgment and sentence tbe court failed to take note of tbe ¡provisions of tbe Indeterminate Sentence Law. Tbe sentence should condemn tbe appellant to confinement in tbe State Penitentiary for npt less than two years nor longer than his natural life. See article 775, C. C. P.; Orange v. State, 76 Tex. Cr. R. 194, 173 S.W. 297; Guyton v. State, 76 Tex. Cr. K. 508, 175 S. W. 1063. In tbe particular mentioned the judgment and sentence are reformed, and as reformed tbe judgment of tbe trial court .is affirmed.