Argon v. State

• Decision Date: 15 March 1933
• Docket Number: No. 15749.,15749.
• Citation: 58 S.W.2d 108
• Parties: ARGON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 108

58 S.W.2d 108

ARGON v. STATE.

No. 15749.

Court of Criminal Appeals of Texas.

March 15, 1933.

Appeal from District Court, Hardin County; Thos. B. Coe, Judge.

Albert Argon was convicted of theft, and he appeals.

Affirmed.

Fletcher S. Jones, of Beaumont, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

MORROW, Presiding Judge.

Theft is the offense; penalty assessed at confinement in the penitentiary for five years.

On the 21st of May, 1929, the appellant was convicted in Hardin county and a penalty assessed against him at confinement in the penitentiary for five years. He was given a suspended sentence by the verdict of the jury. On the 1st day of September, 1932, there was filed in Hardin county a motion to revoke the suspension of the sentence, which motion was granted over the objection of the appellant. It appears that subsequently, on the 9th day of April, 1930, the appellant was convicted in Harris county of a felony theft. On the 12th day of May, 1931, the appellant was given a general parole by the proclamation of the Governor. His term expired and final discharge was given him by the prison authorities on November 18, 1931.

Reliance is had upon the case of Sanders v. State, 108 Tex. Cr. R. 467, 1 S.W.(2d) 901, 57 A. L. R. 440, in which the accused was convicted of a felony in 1922 and a five-year suspended sentence was given him. In 1927, he was convicted of another felony. In the latter case, he was given a full pardon by Governor Ferguson. It was the position taken by Sanders that the full pardon in the subsequent case having been granted, the case could not be made the basis for setting aside the suspended sentence in the previous case. This conviction was suspended upon the fact that the full pardon granted in the second case was an insurmountable obstacle to using that case as a basis for the reopening of the previous case, as provided by article 779, C. C. P. 1925.

In the present appeal, no full pardon was granted, but merely a parole carrying with it certain conditions, as follows: "Now, therefore, I, R. S. Sterling * * * do hereby grant unto the said A. G. Orbregon a general parole conditioned upon his good and lawful behavior. It is provided that he shall keep employed and be of actual assistance to his mother."

A general parole does not possess the finality which is attached to a pardon. A parole is a release of a convict from imprisonment, on specified conditions to be observed by him, and a suspension of his sentence during the liberty thus granted. See Ex parte Ridley, 3 Okl. Cr. 350, 106 P. 549, 551, 26 L. R. A. (N. S.) 110. See, also, 5 Words and Phrases, Third Series, 817; Ex parte Mason, 29 Okl. Cr. 297, 233 P. 785; In re Eddinger, 236 Mich. 668, 211 N.W. 54. Numerous other cases are cited in the volume of Words & Phrases mentioned above.

It is the appellant's contention that the verdict of the jury in the case in Hardin county is void for the reason that it contained the following language: "* * * and assess his penalty at five (5) years in the `Pen', and recommend the sentence be suspended," and that a judgment entered upon the sentence cannot be made the basis of the present prosecution. We are not able to bring ourselves in accord with the appellant's contention that the use of the word "pen" vitiated the verdict. Many cases are cited in Branch's Ann. Tex. P. C., pp. 332, 333, §§ 647, 648, which are regarded as being in opposition to the contention of the appellant.

The case of Keeller v. State, 4 Tex. App. 527, is relied upon. In that case, the opinion...