Brown v. State, 21163.
| Decision Date | 12 June 1940 |
| Docket Number | No. 21163.,21163. |
| Citation | 143 S.W.2d 775 |
| Parties | BROWN v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Falls County; Terry Dickens, Judge.
Dave Brown was convicted of forgery, and he appeals.
Affirmed.
Thos. B. Bartlett, Jr., of Marlin, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The offense is forgery. The punishment assessed is confinement in the state penitentiary for a term of two years.
Appellant first complains of the action of the trial court in declining to sustain his motion to quash the indictment because, in addition to charging forgery, it charged that the defendant had theretofore, on the 5th day of February, A. D., 1934, been convicted in the District Court of Curry County in the State of New Mexico, in cause No. 1533 on the docket of said court, of the offense of burglary,—an offense of like character as the one herein charged and that said conviction had become final against him. We think that the court should have sustained the appellant's motion and stricken that part of the indictment charging the former offense because burglary is not an offense of like character or of the same nature as forgery; but the court, in his charge to the jury, declined to instruct them relative to the former conviction of burglary alleged to have been committed in the State of New Mexico, which was tantamount to a withdrawal thereof from the consideration of the jury. Appellant nevertheless contends that the reading of the indictment to the jury and advising them of the former conviction in the State of New Mexico was highly prejudicial to him. We are not prepared to agree with the appellant in his contention, for the reason that there is no statement of facts in the record and in the absence of such a statement we are unable to determine whether any injury resulted to him by reason of the court's action. Appellent was awarded the lowest punishment prescribed by law for the offense of forgery. The evidence adduced against the appellant may have been so strong and convincing that no other verdict than one of guilty could have been rendered by the jury. It is obvious that the jury did not consider and could not under the instruction of the court have considered the charge of former conviction in the State of New Mexico because they assessed the lowest punishment against him.
Appellant has a number of bills of exception in the record a great number of which are qualified by the trial court. However, in the absence of a statement of facts we are unable to appraise the same. Vernon's Ann.Tex.C.C.P., Vol. 3, Art. 760, note 6 and cases cited thereunder.
Finding no reversible error in the record, the judgment of the trial court is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
On Motion for Rehearing.
Appellant again complains of the trial court's action in allowing the reading to the jury of the third count in the indictment in which a conviction for an offense of burglary had been also alleged in an effort to enhance the penalty in this forgery case, and also of the fact that in qualifying the jury the State's attorney asked the jury relative to the presence of any prejudice in their minds against the law enhancing the punishment of a second offender.
We do not see what reason, if any, the said attorney could have had in questioning the jury relative to the operation of the enhancement statute. The jury had naught to do with affixing such enhanced punishment in the event of a second conviction. Had the trial court submitted all the counts in the indictment to the jury, and had their verdict been predicated upon the third count therein, they would only have been required to find, as to the question of guilt, the amount of punishment being a matter of law for the court to have attended to. See Harbert v. State, 136 Tex.Cr.R. 301, 124 S.W.2d 1005; also see Art. 62, Penal Code.
It is worthy of note that the trial court submitted the first count in the indictment alone, which charged the...
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...to correct it before reading the charge to the jury. See Spadachene v. State, 137 Tex.Cr.R. 26, 127 S.W.2d 466; Brown v. State, 140 Tex.Cr.R. 133, 143 S.W.2d 775; Garrison v. State, 143 Tex.Cr.R. 403, 158 S.W.2d 815; Green v. State, 144 Tex.Cr.R. 186, 161 S.W.2d 114. These articles serve a ......
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