Barr v. State

• Decision Date: 12 April 1911
• Citation: 136 S.W. 454
• Parties: BARR v. STATE.
• Court: Texas Court of Criminal Appeals

136 S.W. 454

BARR v. STATE.

Court of Criminal Appeals of Texas.

April 12, 1911.

Appeal from District Court, Trinity County; S. W. Dean, Judge.

John Barr was convicted of violating the local option law, and he appeals. Reversed and remanded.

Crow & Phillips, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

The appellant in this case was indicted by the grand jury in Trinity county for violating the local option law in three cases. He agreed with the district attorney to enter a plea of guilty, conditioned that the district attorney would dismiss one of the cases. The district attorney complied with this agreement, and dismissed one of the cases, and the defendant entered a plea of guilty in this case. The jury assessed his punishment at one year in the penitentiary, and upon his request he was sentenced the same day.

Three days thereafter his relatives employed an attorney to represent him, and they filed a motion for a new trial, praying that the judgment be set aside on the grounds set up in said motion. The court declined to entertain the motion, on the ground that it was filed more than two days after the entry of the final judgment, and from this order the defendant gave notice of appeal, which was duly entered of record, the trial judge saying: "I make this statement at the request of counsel, as a basis for my action on the motion for a new trial filed herein: (1) On the morning of February 3, 1911, I was informed that John Barr, who had been in jail for some time, desired to plead guilty in two of the cases pending against him, and had made an agreement with the district attorney that this should settle all cases pending against him, both those pending in the district court as well as those being investigated by the grand jury for violation of the local option law in Trinity county, (2) I sent for the defendant, questioned him about it, and he told me that he desired to plead guilty. I asked him why he desired to plead guilty, and he said he had been in jail for some time, had been unable to make bond, and that he wanted to plead guilty, because he was guilty. I warned him in each case separately as to the consequences of such plea, that it would be the duty of the jury to convict him, and give him not less than one nor more than three years in the penitentiary in each case, and asked him if anybody had used any persuasion to induce him to plead guilty, and he said they had not. I asked him if anybody had said anything to him about getting him a pardon if he pleaded guilty, and he said they had not. I asked him if there was any particular reasons why he wanted to plead guilty, and he said there was none; that he wanted to go on and serve his time out and get through with it. The jury impaneled, agreed to by both sides, sworn to try the case, and by agreement of state and defendant, after the indictment was read and the plea of guilty was entered, the examining trial testimony, and the written confession of the defendant introduced to prove the corpus delicti. The district attorney then requested the jury to give the defendant the lowest term, which was one year, and both state and defendant said that the agreement was that he should take two years, and that they had agreed that it should be for one year in each of the two cases, rather than for two years in one case. The jury rendered the verdict, finding the defendant guilty upon his plea of guilty, and assessing his punishment at one year in the penitentiary. The same proceedings were had in the second case as in the first, and charges prepared and filed and given in each case. (3) The defendant showed every indication of being sane, and after the verdicts were both returned he requested me to pass sentence, in order that the time might begin to run. He waived his two days' time in which to file his motion for new trial, and as requested by him I passed sentence on him in each case. (4) There were no witnesses sworn in either case, and no evidence introduced, except the examining trial evidence, and this was not read to the jury, but was introduced in evidence, and the purport of the testimony stated by the district attorney to the jury, when he requested them to render their verdict assessing the penalty at only one year in the state penitentiary. (5) Pursuant to the agreement made between the defendant and the district attorney, I instructed the district attorney to request the grand jury to...