Justice v. State

341 S.W.2d 431, 170 Tex. Crim. 383, 1960 Tex. Crim. App. LEXIS 2225

Opinion

MORRISON, Presiding Judge.

The offense is aggravated assault; the punishment, ten days in jail and a fine of $50.

A plea of guilty was entered before the court.

The punishment provided for aggravated assault by Article 1148, Vernon’s Ann.P.C., is a fine of not less than $25 nor more than $1,000, or by imprisonment in jail for not less than one month nor more than two years, or both such fine and imprisonment.

Since the court saw fit to impose a jail term, it was incumbent upon such court to comply with the statute. In Rutherford v. State, 79 Tex.Cr.R. 605, 187 S.W. 481, where the punishment was less than the minimum, this Court held that no court could assess a punishment that the law does not authorize. See also Simmons v. State, 156 Tex.Cr.R. 601, 245 S.W.2d 254, and Malone v. State, Tex.Cr.App., 328 S. W.2d 310.

The judgment is reversed and the cause remanded.