Castro v. State

• Decision Date: 15 February 1933
• Docket Number: No. 15592.,15592.
• Citation: 60 S.W.2d 211
• Parties: CASTRO v. STATE.
• Court: Texas Court of Criminal Appeals

60 S.W.2d 211

CASTRO v. STATE.

No. 15592.

Court of Criminal Appeals of Texas.

February 15, 1933.

Rehearing Denied May 3, 1933.

Second Rehearing Denied May 24, 1933.

Appeal from District Court, Bee County; T. M. Cox, Judge.

Simon Castro was convicted of perjury, and he appeals.

Affirmed.

L. D. Stroud, of Beeville, for appellant.

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

HAWKINS, Judge.

Conviction is for perjury; punishment being two years in the penitentiary.

In the indictment it was alleged in appropriate language that there was pending in the district court of Bee county an indictment charging appellant with burglary; that, when the case was called for trial, he filed his application for a suspended sentence in which he swore that he had "never before been convicted of a felony in this or any other state." Such statement was traversed by the averment that in truth appellant had theretofore been convicted of a felony in the "district court," of Kleberg county, Tex.

The state offered in evidence a judgment of conviction for the possession of intoxicating liquor for the purpose of sale. The receipt of the judgment in evidence was opposed on the ground, among others, that it was a conviction in the "criminal" district court of Kleberg county, whereas it was averred in the indictment that the conviction was had in the "district" court of Kleberg county, and that the proffered judgment constituted such a variance as rendered it inadmissible. The trial court overruled the objection. By the terms of subdivision 28, art. 199, R. C. S. 1925, there was created for the counties of Kleberg and others named, a criminal district court which should exercise all criminal jurisdiction theretofore vested in the district court of the Twenty-Eighth judicial district, and provided that thereafter the district court of the Twenty-Eighth judicial district should cease to exercise criminal jurisdiction. There was then only one district court in Kleberg county with criminal jurisdiction, to wit, the "criminal district court." Appellant therefore, under the terms of the law, had notice that when the words "district court of Kleberg county" were used in describing a judgment in a felony conviction it was bound to be a judgment in the criminal district court of said county. The modern tendency of the courts has been to hold that a variance to be material must be such as to mislead a party to his prejudice, and this doctrine has been applied recently by this court on the question of "idem sonans." See Jones v. State, 115 Tex. Cr. R. 418, 27 S.W.(2d) 653, in which many authorities are cited, and from many of which quotations are set out and approved. It is clear that there could have been no surprise to appellant by reason of the claimed variance in the allegations of the indictment and the proof, and that he was in no manner misled in the premises.

When the judgment from the criminal district court of Kleberg county was offered in evidence, it was also objected to on the ground that it did not show a conviction for a felony. The objection was based upon a recital in the judgment that appellant was adjudged to be guilty of the "possession of intoxicating liquor." Appellant correctly says that under our present statute (article 666, P. C. 1925) it is not a felony to possess intoxicating liquor unless same is possessed for the purpose of sale. The record shows that the judgment was based upon an indictment which charged that appellant possessed the liquor for the purpose of sale, and the verdict found appellant guilty as "charged in the indictment." The judgment does not describe the offense completely, but such defect does not render the judgment void. The verdict assessed the penalty at five years' confinement in the penitentiary, and recommended the suspension of the sentence. The judgment directs appellant's imprisonment in the penitentiary for five years, but suspends the execution of the sentence and directs that appellant be released upon entering into recognizance. Hill v. State, 92 Tex. Cr. R. 312, 243 S. W. 982.

The state introduced a copy of the judgment of conviction in Kleberg county certified to by the clerk of the criminal district court on the 22d day of May, 1931. That copy was discovered to be incorrect in some particulars. The clerk was recalled to the stand and explained that he made the first copy in response to a telephone call from the sheriff of Bee county, and, being pressed for time, the witness hurriedly took a stereotyped form and filled it out without a very close check of the judgment itself. He then produced a second certified copy of the judgment of conviction in Kleberg county which was certified to by the clerk on the 12th day of April, 1932, and which witness swore was a correct copy. The clerk testified that he discovered the inaccuracy in the first copy when the question came up during the trial. The court permitted the state to withdraw the first copy of the judgment, and admitted in evidence the second copy referred to by the clerk. This proceeding was objected to by appellant for many reasons, and exception reserved to the action of the court. Later appellant himself offered in evidence the copy of the judgment which the court had permitted to be withdrawn, and excepted to the action of the court in refusing to permit him to reintroduce it. Under the circumstances stated we discover no error in the action of the court in the particulars mentioned.

What has been said disposes of bills of exception Nos. 1, 2, and 3.

The state's evidence was to the effect that, when the burglary case against appellant in Bee county was called for trial, the application for a suspended sentence was presented to the clerk of the district court by appellant. The application was not prepared by the clerk; it was delivered to him with everything written in except appellant's name under the style of the case, which the clerk filled in. The clerk testified that the statement in the application to the effect that appellant had not theretofore been convicted of a felony was in the application at the time appellant was sworn thereto; that at the time the oath was administered to appellant by the clerk the interpreter for the court was also present. It does not appear from the state's evidence that the application for suspended sentence was read over to appellant by the interpreter under the direction of the clerk, but that, after appellant signed the affidavit, the oath administered to him by the clerk through the interpreter was that "You do solemnly swear that the statements contained in this application for a suspended sentence in this case are true and correct, so help you God," to which appellant answered "Yes." The testimony of the court interpreter was, in substance, that the first he remembered about the transaction was that he was instructed to call appellant to the clerk's desk, which he did, and that appellant signed the application for suspended sentence; that he interpreted the oath administered to appellant by the clerk.

Appellant did not testify. His attorney gave evidence as follows: "* * * Just as we were going into the trial, Simon Castro asked me if he could get a suspended sentence. I told him that I didn't know that he could make the proper application. * * * He says, `Well, I believe I will make it if I can.' He talked in very poor English, and I did most of the talking. When I found out what he wanted, I got a blank,—just a blank form—and partially filled it out in pencil. * * * He then took it and went to the clerk, and he asked him to sign it, and I reckon he did. Before going to the clerk, I asked him if he had ever been convicted of a felony, and he said he didn't know what that was— said (What is that?) `Well,' I said, `have you ever been sent to the penitentiary before anywhere?' and he said `No, but I paid a fine.' That was all I said to him. * * * Simon Castro did not tell me that he had received a suspended sentence in the District Court at Kingsville. Had he called it to my attention I would have investigated the matter and acted according to my knowledge of the law. * * * The defendant talked to me in English a little bit, and, when I understood what he wanted, I got an application blank and partially filled it out. I asked him if he had ever before been convicted of a felony, and he asked me what that was, and I said, `That means that you've never been sent to the penitentiary,' and he said that he had never had anything done to him except to have to pay a fine of $50'—and I said, `Well, that wouldn't make any difference.' I don't know in what court he had to pay that fine,—I never paid any further attention to it. * * * I expect that Simon thought he could get two suspended sentences at the same time; but * * * I don't know what he thought because he didn't mention it to me. He did not tell me at that time that he had been convicted of a felony in Kleberg County on February 5th, and given a five year suspended sentence."

Under the issue raised by the testimony of appellant's counsel, the court instructed the jury as follows: "You are further instructed that...