Ex Parte Mathews

DAVIDSON, Judge. The relator, a girl under 16 years of age, was-convicted of murder in the second degree, in the Fifty-fourth Judicial District, before the Honorable S. R. Scott, presiding judge thereof, and her punishment assessed by the verdict of the jury at imprisonment in the State reformatory. The judgment entered up on said verdict placed her confinement in the penitentiary, and not in the reformatory. For this reason, relator sued out a writ of habeas corpus before Judge Surratt, and upon the trial was remanded, and prosecutes .her appeal to-this court. The judgment of the court recites “that it appearing to the court that there is no provision of law authorizing the commitment of females to the State reformatory, but, on the contrary, the law excludes them therefrom, and it further appearing to the court that the defendant is a female, it is therefore ordered, adjudged, and decreed by the court that she be punished by confinement in the State penitentiary for a term of five years, as has been determined by the jury,” etc. This judgment was attacked upon the habeas corpus trial because of its alleged invalidity. If the judgment is void, the trial judge erred in not discharging relator. If not void, the action of the court was correct. If there is any error at all, it is to be found in the fact that the jury sent relator to the reformatory, and the judge entered up the judgment on such verdict, consigning her to the penitentiary. We think that this did not render the judgment void. The law does not authorize the incarceration of females in the State reformatory, but excludes them; and the-fact that the jury stated in their verdict, as a place of punishment, the reformatory, does not change this law. And in this character of case, *621 the fact that the place of confinement was or was not stated, is wholly immaterial. If the defendant had been a boy under 16 years of age, and the punishment had been five years or less, then the fact that the jury sent him to the reformatory would not justify the court in entering up a judgment incarcerating him in the penitentiary, because in this supposed case the jury would have been justified and authorized to select the place of confinement, either the reformatory or the penitentiary, but not so with reference to female convicts; and the place of confinement stated by the jury in their verdict was not authorized, and was properly treated as surplusage. The jury would have no authority to violate the law, in designating a place of punishment prohibited by the law. The court could not have entered a judgment consigning relator to the reformatory, because not warranted by the law. See Ex Parte Creel, 29 Texas Crim. App., 439. In Ex Parte Wood, 36 Texas Criminal Reports, 7, the verdict of the jury failed to specify the place of confinement; finding a general verdict of guilty, and that defendant was under the age of 16 years. The judgment of the court was entered, sending the defendant in that case to the reformatory. The writ of habeas corpus in said ease was resorted to for relief, and this court held that the writ would not lie. Judge Henderson filed a dissenting opinion upon some of the propositions involved in that case, but concurred with the opinion of the majority of the court that the writ of habeas corpus would not lie in such case. So far as this question is concerned, that •case, we think, is conclusive of this. As to the question that the designation of the place of confinement may be disregarded in a ease of this character, see Clemons v. State (Tenn. Sup.), 21 S. W. Rep., 525; Willard v. Com. (Ky.), 28 S. W. Rep., 151. So we are of the opinion that the judgment of the court was not void, that the writ of habeas corpus would not lie, and that the judgment of the lower court was correct. Affirmed.