Opinion
No. 19832.
Delivered June 8, 1938.
1. — Bills of Exception — Jurors (Examination of).
Bills of exception, complaining of the action of the trial court in restricting defendant in his examination of prospective jurors on their voir dire, held not to reveal reversible error, where there was no contention that, because of court's ruling, defendant could not intelligently exercise his right of challenge, or that he was forced to take an unacceptable juror.
2. — Bills of Exception — Statement of Facts.
Bills of exception, relating to argument of district attorney, could not properly be appraised, in the absence of a statement of facts.
3. — Theft — Charge — Punishment.
In prosecution for theft of cattle, an instruction to the jury that, if they found the defendant guilty as charged, they could assess his punishment at confinement in the State Penitentiary for any number of years not less than two nor more than four, held not reversible error, although the statute prescribed that the punishment should be not less than two nor more than ten years, where the defendant received the lowest punishment prescribed by the statute.
Appeal from the District Court of Wood County. Hon. Roy Butler, Judge.
Appeal from conviction for theft of cattle; penalty, confinement in penitentiary for two years.
Affirmed.
The opinion states the case.
Otto Mullinax, of Houston, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction is for theft of cattle. The punishment assessed is confinement in the State Penitentiary for a term of two years.
The record is before us without a statement of facts. Appellant has a number of bills of exceptions complaining of the action of the trial court in restricting him in his examination of prospective jurors on their voir dire. The bills fail to reveal reversible error. Appellant does not claim that by reason of the court's ruling he could not intelligently exercise his right of challenge, or that he was forced to take an unacceptable juror.
The bills of exceptions relating to the argument of the district attorney can not properly be appraised in the absence of a statement of facts.
Appellant contends in his brief that the trial court committed fundamental error by instructing the jury that if they found the defendant guilty as charged, then they could assess his punishment at confinement in the State Penitentiary for any number of years not less than two nor more than four. It is true that the Penal Code, as amended in 1937 by the 45th Legislature, changed the punishment prescribed for theft of hogs, horses, mules and cattle and provided that the punishment should be not less than two nor more than ten years. However, in just what manner the charge injured appellant's rights is not revealed by the record. Having received the lowest punishment prescribed by the statute, we fail to see how he could have been injured.
It seems that appellant was perfectly satisfied with the charge as no objection was made thereto. Moreover, it was most beneficial to him in that it limited the jury in assessing his punishment to four years when, under the law as amended, they might have given him five or ten years.
No reversible error appearing in the record, the judgment of the trial court is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.