Brady v. State

• Decision Date: 07 December 1932
• Docket Number: No. 15127.,15127.
• Citation: 55 S.W.2d 104
• Parties: BRADY v. STATE.
• Court: Texas Court of Criminal Appeals

55 S.W.2d 104

BRADY v. STATE.

No. 15127.

Court of Criminal Appeals of Texas.

December 7, 1932.

Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.

Thelbert Brady was convicted of robbery, and he appeals.

Judgment reversed, and the cause remanded.

Snell & Aynesworth, of Houston, for appellant.

O'Brien Stevens, Cr. Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

HAWKINS, J.

Appellant, Bill Hensley, and G. E. Collier were jointly indicted for robbery. Appellant was alone upon trial. What became of the case against Collier is not shown from the record. Presumptively, it had been disposed of in his favor as he was used as a witness by appellant.

The evidence for the state shows that appellant and Hensley robbed S. M. Baucom and W. Santell in an upstairs room in an apartment house in the city of Houston, taking $50 from Baucom and $120 from Santell; that appellant used two pistols during the robbery, and Hensley used one; that Baucom and Santell had come to the house at the invitation of Collier, expecting him to be there; that they waited for him about fifteen minutes, and, when he did not come, they started to leave, and the robbery occurred, after which appellant and Hensley tied the hands of Baucom and Santell behind them with rope and left them in the room. The evidence for appellant was to the effect that Baucom and Santell had come to the room to engage in a game of cards with Hensley; that Santell had made a prior visit to the room, arranging with Hensley to so conduct the game as to beat Baucom out of his money; that during the course of the game it was discovered that Baucom and Santell were cheating Hensley; that appellant and Hensley, by insisting firmly, but without any force or violence, obtained back from Santell the money which belonged to Hensley. Appellant, Hensley, and Collier were arrested several hours after the robbery; they were in Collier's car, which he was driving. Two pistols were in the car which officers claimed appellant and Hensley reached for when the car was stopped. This was denied by appellant. Appellant's testimony was that one of the pistols belonged to him and the other to Hensley. Officers testified that an automatic pistol was found in a suitcase which had Hensley's address and clothes in it. This suitcase was in another car in which appellant and Hensley had come from Oklahoma a few days before the robbery. Appellant denied that the automatic pistol belonged to either him or Hensley, or that it was taken out of a suitcase belonging to either of them. He claimed he had never seen this pistol before, but said perhaps it belonged to a man by the name of Watson, who had come with them from Oklahoma, and claimed it must have been taken out of Watson's suitcase by the officers. Appellant testified that he understood the car in which he and Hensley came from Oklahoma belonged to Hensley; that he did not know whether or not it was a stolen car; that he had come at Hensley's invitation.

Bill of exception No. 2 raises a question as to the presentment of the indictment. It is recited in the indictment that "the Grand Jury of Harris County, State of Texas, duly organized at the May Term, A. D. 1931 of the Criminal District Court of said county in said court, at said term, do present," etc. The position taken by appellant is that the indictment was not presented in the proper court.

The case was tried in criminal district court of Harris county of which the Honorable Whit Boyd was presiding judge. The fourth ground of exception to the substance of an indictment under article 511, C. C. P., is "that it shows upon its face that the court trying the case has no jurisdiction thereof." Such an exception to the substance of the present indictment was untenable, because upon its face the indictment affirmatively showed that the court in which the case was tried did have jurisdiction. An exception to the form of an indictment, article 512, subd. 1, may be based upon the ground "that it does not appear to have been presented in the proper court, as required by law." An exception on that ground was untenable in so far as the face of the indictment was concerned. However, it is recited in the bill of exception which brings the question forward that "the Grand Jury presented the indictment in Criminal District Court No. 2 of Harris County, Texas, while Judge Langston G. King, who is Judge of that court, was presiding, and in the regular court room of said court."

From the recitals in the indictment it appears that the grand jury must have been organized by the Honorable Whit Boyd, judge of the criminal district court of Harris county. The bill of exception complaining of the return of the indictment is meager, and throws no light on why the grand jury reported to Judge King of criminal district court No. 2. By Act of the Regular Session of the 40th Legislature (1927) c. 24, p. 33 (Vernon's Ann. C. C. P. art. 52—158, § 1 et seq.), criminal district court No. 2 of Harris county was created. Section 2 of said act (Vernon's Ann. C. C. P. art. 52—158, § 2) provides that, after it became effective, all felony cases of even numbers should be filed by the clerk in criminal district court No. 2, and felony cases of odd numbers should be filed in the criminal district court of Harris county. This seems to be a positive direction as to where the odd and even numbered cases shall be lodged, regardless of which court organized the grand jury, and regardless of which judge may have received the report of the grand jury. We observe that the number of the indictment in the lower court was 35483, an odd number, which, under the terms of section 2 of the act of the Legislature just referred to, lodged the indictment in the criminal district court in any event. In section 3 of said act (Vernon's Ann. C. C. P. art. 52—158, § 3) it is provided that: "* * * Either of the judges of said criminal district courts may, in his discretion, in the absence of the judge of the other criminal district court from his court room or from the County of Harris, Texas, try and dispose of any cause or causes that may be pending in such criminal district court as fully as could such absent judge were he personally present and presiding. And either of said judges may receive in open court from the foreman of the grand jury any bill or bills of indictment in the court to which such bill or bills of indictment may be returnable, * * * and * * * make any other order or orders in such courts respecting the cause therein pending or the procedure pertaining thereto as the regular judge of said criminal district court could make if personally present and presiding."

The bill of exception being silent as to why the judge of criminal district court No. 2 received the report of the grand jury, we must assume that he was acting within his authority under the terms of the statute just quoted, and that Judge Boyd was absent from his courtroom or from the county of Harris, at the time the grand jury made its report. When reduced to its last analysis, it appears that appellant's...