Lewis v. State

145 S.W.2d 571, 140 Tex. Crim. 470, 1940 Tex. Crim. App. LEXIS 677

Opinions

BEAUCHAMP, Judge.

Willie Lewis was given a penalty of two years in the penitentiary by a jury in Williamson County on a charge of assault to murder, and from it he appeals.

The indictment alleges that he, “then and there unlawfully cut Myrtle Lewis with a knife with the intent then and there to murder the said Myrtle Lewis * The court submitted an issue to the jury on assault to murder with malice and without malice. The jury returned the following verdict: “We, the jury find the defendant guilty of an unlawful assault with the specific intent to kill the said Myrtle Lewis by cutting her with a knife and assess his punishment at confinement in the State Penitentiary for a term of two years.”

The State has conceded that this verdict is insufficient upon which the court may impose a valid sentence under the holdings of this court in Pleasant v. State, 128 S. W. (2d) 813 and the authorities there cited and discussed. We think the State’s admission is correct. Accordingly, the judgment of the trial court is reversed and the case remanded.