Brown v. State

245 S.W.2d 497, 156 Tex. Crim. 652, 1951 Tex. Crim. App. LEXIS 1713

Opinions

WOODLEY, Judge.

The conviction is for sodomy; the punishment, 4 years in the penitentiary.

Appellant moved to quash the indictment, contending that the count which was submitted to the jury failed to allege that appellant had carnal copulation with the injured female.

The indictment alleges that appellant did place his sexual organ in the anus of the female named for the purpose of having camel copulation with her. Such allegation is deemed sufficient to charge that appellant had such carnal copulation with the female in an opening of her body other than her sexual parts as denounced by the sodomy statute, Art. 524, Vernon’s Ann. P.C. See James v. State, 61 Tex. Cr. R. 232, 134 S.W. 699.

If we understand appellant’s further contention, it appears that he is under the impression that since he has never before been convicted of a felony, he was entitled to have his sentence suspended.

The issue of suspension of sentence was submitted to the jury. They made no finding on whether or not appellant had been previously convicted, but in their verdict said, “we recommend that his sentence be not suspended.”

The trial judge was requested to complete the verdict by a finding from the undisputed evidence that he had never before been convicted of a felony. This request was properly refused.

The question whether or not the sentence should be suspended was for the jury, who in their discretion refused to recommend a suspension.

In the absence of a recommendation from the jury, the trial court was without authority to suspend sentence on the judgment rendered on their verdict. See cases cited in Tex. Dig., Criminal Law Key 982(g).

The sentence appearing in the transcript fails to give effect to the indeterminate sentence law. It is now reformed so as to read for a term of not less than 2 years nor more than 4 years in the penitentiary.

As so reformed, the judgment is affirmed.

Opinion approved by the court.