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Henderson v. State

318 S.W.2d 898, 167 Tex. Crim. 112, 1958 Tex. Crim. App. LEXIS 3521
CourtCourt of Criminal Appeals of Texas
DecidedDecember 17, 1958
Docket30158
StatusPublished
Cited by16 cases

This text of 318 S.W.2d 898 (Henderson v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henderson v. State, 318 S.W.2d 898, 167 Tex. Crim. 112, 1958 Tex. Crim. App. LEXIS 3521 (Tex. 1958).

Opinions

DICE, Judge.

Upon a trial before the court without a jury, appellant was convicted as a second offender of the offense of unlawfully possessing policy paraphernalia and his punishment assessed at confinement in jail for 30 days.

In view of our disposition of the case a recitation of the facts is deemed unnecessary other than to observe that the state offered evidence in support of the allegations in both counts of the information which charged appellant with commission of the primary offense and with having been previously convicted of an offense of like character.

The punishment prescribed by Art. 642 Y.A.P.C., Sec. 2 for the offense of unlawfully possessing policy paraphernalia is “by fine of not less than One Hundred Dollars ($100) nor more than One Thousand Dollars ($1,000), or by imprisonment in the County jail for not less than thirty (30) days nor more than one (1) year, or by both such fine and imprisonment.”

Art. 61 V.A.P.C. provides that “If it be shown on the trial of a misdemeanor that the defendant has been once before convicted of the same offense, he shall on a second conviction receive double the punishment prescribed for such offense in ordinary cases * *

Under these statutes the minimum jail time which could be assessed appellant as punishment upon his conviction as a second offender was imprisonment in the county jail for sixty (60) days.

The punishment assessed by the court of thirty (30) days in jail was below the minimum.

It has been held that the punishment assessed must always be within the minimum and maximum fixed by law and that on appeal a judgment assessing punishment less than the minimum [114]*114provided by law will be reversed. Rutherford v. State, 79 Texas Cr. Rep. 605, 187 S.W. 481; Simmons v. State, 156 Texas Cr. Rep. 601, 245 S.W. 2d 254, and Ex Parte Stewart, 160 Texas Cr. Rep. 483, 271 S.W. 2d 945.

For the reason stated the judgment is reversed and the cause remanded.

Opinion approved by the Court.

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Craven v. State
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Gilliland v. State
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Hale v. State
330 S.W.2d 199 (Court of Criminal Appeals of Texas, 1959)
Bradshaw v. State
331 S.W.2d 52 (Court of Criminal Appeals of Texas, 1959)
Malone v. State
168 Tex. Crim. 409 (Court of Criminal Appeals of Texas, 1959)
Henderson v. State
318 S.W.2d 898 (Court of Criminal Appeals of Texas, 1958)

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Bluebook (online)
318 S.W.2d 898, 167 Tex. Crim. 112, 1958 Tex. Crim. App. LEXIS 3521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henderson-v-state-texcrimapp-1958.