Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 320
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320 GRANT V. WIHITTLESEY. [Term of
" in the indictmentt" that guilt of murder in the first degree is
legally imputed and ascertained, any more than that in the
second. The question is resolved back into the simple proposition,
wllether or not the court can adjudge a penalty unless it
can legally determine from the verdict, that the defendant has
been convicted of an offense to which such penalty is affixed by
law. The authority given the jury by the Constitution to mitigate
the penalty in capital offenses to imprisonment in the penitentiary
for life, in no way affects the matter.
Unless the defendant is found guilty of murder in the first
degree, the court, as we have said, cannot say that they have
not assessed a penalty not warranted. To guard against the
possibility of such a result, and to prevent the commutation by
juries of the penalties fixed by law, had, no doubt, great force
in inducing the Legislature to require juries to find the degree
of the offense in their verdicts, as well as to assess the penalty
in those cases in which this duty is confided to them. But
whatever may have been the motive for its enactment, thus it
is plainly written in the Code, and until altered or repealed, it
is evidently the duty of the court to observe and enforce it.
For want of a sufficient verdict to warrant the judgment,
it is reversed, and the cause remanded.
Reversed and remanded.
R. A. & E. A. GRANT V. J. E. WHITTLESEY.
1. JUDGMENT. When tt debt is incurred for the protection of the separate
property of the wife, to secure which a note is executed voluntarily by
the wife jointly with her husband, judgment may be rendered on the
note directing execution to be levied on the community property, or on
her separate property, at the option of the plaintiff.
2. PRACTICE. Though a demurrer on which no action is invoked is in general
considered as waived, and a defective plea is cured by verdict, yet
when a petition is fatally defective, and fails to state a cause of action,
the fact that defendant did not rely on his demurrer will not prevent
him from availing himself of such defect on appeal or writ of error.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/328/: accessed September 21, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .