Burke v. State (47 S.W.2d 615, 1932)

LATTIMORE, J.

Conviction for arson; punishment, five years in the penitentiary.

Appellant complains of the indictment, but we observe that same charged that the house which was burned was “situated within the city of Shamrock, Texas, in said county.” The court submitted this issue to the jury. We think the indictment sufficient.

For some reason, the court was misled in stating to the jury the punishment for the offense of arson. He stated that the punish-, ment was not less than five, nor more than twenty, years. The 'jury gave to appellant the lowest penalty stated in the charge. In fact, the lowest penalty fixed by our statute, see article 1314, P. C., is two years, and the court should have instructed the jury that in case of guilt the punishment should be confinement not less than two, nor more than twenty, years. Without discussing the facts, it is clear that the jury, having given to appellant the lowest penalty allowed in the punishment stated by; the court, may have given a lower penalty, if allowed so to do. The error is one for which reversal must be had. Steele v. State, 46 Tex. Cr. R. 338, 81 S. W. 962; Johnson v. State, 64 Tex. Cr. R. 108, 141 S. W. 524.

The judgment will be reversed, and the cause, remanded.