Burks v. State

• Decision Date: 04 November 1942
• Docket Number: No. 22201.,22201.
• Citation: 165 S.W.2d 460
• Parties: BURKS v. STATE.
• Court: Texas Court of Criminal Appeals

165 S.W.2d 460

BURKS v.STATE.

No. 22201.

Court of Criminal Appeals of Texas.

November 4, 1942.

Commissioners' Decision.

Appeal from District Court, Franklin County; Sam Williams, Judge.

W. G. Burks was convicted of assault with intent to murder, and he appeals.

Reversed and remanded.

R. T. Wilkinson, Sr., of Mt. Vernon, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

Assault with intent to murder Tom Mitchell is the offense; the punishment, two years' confinement in the state penitentiary.

Appellant pleaded guilty, waived a trial by jury, and submitted his case to the judge.He filed, and supported by proof, an application for a suspension of sentence.

The State's testimony showed that appellant, without justification or excuse, while about 75 feet from Mitchell, fired upon him with a shotgun.The shooting occurred at the depot platform in Mt. Vernon.As the shot was fired or was about to be fired, Mitchell jumped behind a baggage truck.Most of the shot from the gun took effect in or struck the standard of the baggage truck.One shot struck Mitchell's hat and another passed through his shirt sleeve.He was not otherwise struck, nor was any injury inflicted or sustained by him.After firing the shot, Mitchell advanced towards appellant, who fled.

Appellant testified, supporting his application for a suspension of sentence.He admitted his guilt and asserted that, if the judge would suspend his sentence, he would not again be guilty of violating the law.

Witnesses attested appellant's good reputation for being a peaceable and law-abiding citizen.

Upon cross-examination of the appellant, the State developed that, on the same day of the shooting, and only a short time prior thereto, appellant and Mitchell had a difficulty, in which the injured party"pulled out his knife right there infront of all those negroes and when he started toward me, with the knife I ran in Mr. Gist's store.Yes sir, he started at me and was going to cut me down * * * and I ran * * *.Yes sir, I went on home because I was afraid of him."

The cross-examination further developed that, after the above mentioned occurrence, appellant went to his home, got the shotgun, and went to the depot.As to what then happened, the appellant further testified, upon cross-examination:

"No sir, I don't deny that I shot at that negro.Yes, I remember, shooting at him.Yes sir, I remember everything that happened from the time I got that gun until I did shoot at him.No, I didn't see my mother or sister and didn't speak to them and they didn't speak to me.No sir, Elmer Burks didn't say anything to me.No, my own brother-in-law, Joe Ben Smith didn't plead with me.He was at home I guess, I didn't see him.No sir, he wasn't around the depot at all, I didn't see him.I didn't see him comedown the road with my sister, who is his wife.Yes sir, I am telling the Court the truth about this.No sir I didn't drink no whiskey, I shot at him because he was coming toward me and I was scared.Yes sir, I thought he was going to hurt me.Yes, I thought he was going to knock me down, he had already run me."

"No sir, I wasn't shooting at Tom Mitchell to kill him, I was just shooting to scare him.No sir, I wasn't shooting right at his head.* * * I was scared of that negro when I shot him.* * * No sir.I didn't get that gun and come back up town looking for him, I just accidentally come across Tom.No sir I didn't intend to shoot him.* * * I tell this Court that I didn't intend to shoot him, I just shot to scare him.* * * Yes sir, I shot at Tom Mitchell because I was scared of him."

The trial court rejected appellant's plea for a suspension of sentence and fixed his punishment as noted.

By a motion for new trial, appellant insisted that the judgment of conviction should not stand, for two reasons: (a) because appellant was persuaded to enter his plea of guilty by reason of representations made to him that, if he did so, he would receive a suspended sentence; and (b) because the State, upon cross-examination of appellant, developed facts showing or tending to show that he was not guilty of the offense charged.We will consider only the second ground stated.The disposition made thereof renders unnecessary consideration of the first.

It has long been the established rule that a plea of guilty to a felony charge, before a jury, admits the existence of all facts necessary to establish guilt, and, in such cases, the introduction of testimony by the State is for the jury's benefit in fixing punishment.12 Tex. Jur., Sec. 300, p. 638; 11 Texas Digest, Criminal Law, and authorities there cited.This, however, is not the rule where a trial by jury is waived and a plea of guilty to a felony is entered before the trial judge.In such cases, the State is under the burden of introducing evidence sufficient to show the guilt of the accused as charged.Art. 12, C. C.P., as amended by Chapter 43, Acts42nd Leg., 1931, Vernon'sAnn.C.C.P. art. 12;Spivey v. State, 140 Tex.Cr.R. 107, 143 S.W.2d 386;Franklin v. State, 140 Tex.Cr. R. 251, 144 S.W.2d 581.The plea of guilty in such cases, while constituting an admission of guilt, does not authorize a conviction.

It is also well settled by the decisions of this court that, where a plea of guilty is entered in the trial of a felony, before a jury, and facts are introduced in evidence which make evident the innocence of the accused, the plea of guilty should be withdrawn and a plea of not guilty entered.Harris v. State, 76 Tex.Cr.R. 126, 172 S.W. 975;Taylor v. State, 88 Tex.Cr.R. 470, 227 S.W. 679;Yantis v. State, 95 Tex.Cr.R. 541, 255 S.W. 180;Aills v. State, 114 Tex. Cr.R. 345, 24 S.W.2d 1097;Villa v. State, 122 Tex.Cr.R. 142, 53 S.W.2d 1023;Thompson v. State, 127 Tex.Cr.R. 494, 77 S.W.2d 538;Edwards v. State, 134 Tex.Cr. R. 153, 114 S.W.2d 572;Navarro v. State, 141 Tex.Cr.R. 196, 147 S.W.2d 1081.

While the rule stated appears to have been applied in cases where the facts show or tend to show that the accused is insane, it is by no means limited to those cases.In the Harriscase, supra , we said: "If the defendant pleads guilty, and the facts should develop that he is not guilty, but acted purely in self-defense, it would be the duty of the court to see that no conviction was had, although a plea of guilty was entered."

In the Villacase, supra, where a plea of guilty was entered in a murder case, the accused testified to facts showing that he acted in self-defense.It was suggested that, under such circumstances, the better practice would be to have the plea of guilty withdrawn and the case concluded under a plea of not guilty.

In the light of adjudicated cases, the rule now appears to be that, where a plea of guilty is entered in a felony case, before a jury, and evidence is introduced which makes evident the innocence of the accused, or which reasonably and fairly raises an issue as to such fact, such evidence should be withdrawn or a plea of not guilty entered.At any and all events, the case should not proceed to final judgment under the plea of guilty.

The rule stated becomes material in construing the applicable provisions of Art....