Cohen v. State

11 Tex. Ct. App. 337

Opinion

White, P. J.

Appellant was prosecuted by indictment for fornication or habitual carnal intercourse with one Fannie Simpson. The court charged the jury that if they found him guilty they would assess his punishment by fine not less than fifty nor more than one hundred dollars. This is not the punishment affixed by the statute. Penal Code, art. 338. In a criminal case the jury should be distinctly charged as to the punishment which may be imposed by their verdict, and an error in the charge as to such punishment will be ground of reversal although defendant had the benefit of a lighter punishment. Buford v. State, 44 Texas, 525; Robinson v. State, 2 Texas Ct. App. 390; Jones v. State, 7 Texas Ct. App. 338.

Over and above the error committed by the court with regard to the punishment, the evidence, in our opinion, fails to sustain the charge in the indictment. Tollett v. State, 44 Texas, 95; Barnell v. State, 5 Texas Ct. App. 113.

The judgment of the court below is reversed and the cause remanded.

Beversed and remanded.