Davis v. State, 21983.
Decision Date | 10 June 1942 |
Docket Number | No. 21983.,21983. |
Citation | 164 S.W.2d 686 |
Parties | DAVIS v. STATE. |
Court | Texas Court of Criminal Appeals |
Appeal from District Court, Travis County; Roy C. Archer, Judge.
Sam Davis was convicted of assault to rob, and he appeals.
Reversed and prosecution ordered dismissed.
Emmett Shelton and Polk Shelton, both of Austin, for appellant.
Spurgeon E. Bell, State's Atty., of Austin, for the State.
Appellant was convicted of assault to rob Mrs. A. F. Giese of the sum of $3, together with a carton of cigarettes. His punishment was assessed at five years in the penitentiary.
The appeal is predicated on the failure of the court to sustain appellant's plea in abatement, it being the contention that appellant was put on trial at a previous date for this same offense and that when the jury failed to agree, the court dismissed them without the consent and concurrence of appellant at a time when his attorney was not present in the court room.
On the facts on this plea it was stated by appellant's attorney that he had instructed the deputy sheriff not to call him when the jury returned a verdict. It is shown the jury was out about an hour when they came into the court room and reported that they could not agree. Appellant was placed on the witness stand and asked the question, "Did the Judge ask you if you wanted to have them dismissed?" To this he answered, "No, sir, not that I remember." The court asked the witness if it is not a fact that when the jury reported he had him to stand and said to him, In answer to the question as to whether or not he remembered this, the appellant replied, "I just don't remember." The court was requested by the State to put into the record his version of what occurred and made the following statement: "
The jury stood eleven for acquittal and one for conviction.
It is noted that the trial court, in detailing all the things that took place, does not say he asked for the concurrence of appellant; nor is it shown that he was advised of his rights in the matter of asking for a continuance of the deliberations by the jury. It is not shown he even knew he had the privilege of objecting. The court simply informed him of what was being done. At this the jury was discharged and appellant had the privilege of retiring from the court room on his old bond or making a new one.
On the subsequent call of the case a plea of jeopardy was presented and appellant admitted he was satisfied to have the jury discharged. This was a natural position to take at the time.
We have extensively reviewed the decisions of this court from its beginning and find none that sustain the State's position. It involves a constitutional right which should be guarded with the greatest care. Art. 1, Sec. 14, Vernon's Ann.St. Const. It is not deemed essential to review all, or a great part, of these cases. Consequently we refer to only a few.
In Powell v. State, 17 Tex.App. 345, Judge White said:
On the State's motion for rehearing Judge Hurt said:
The appellant did not waive his rights in the matter; nor did he agree to the discharge of the jury by his silence. Early v. State, 1 Tex.App. 248, 28 Am. Rep. 409; Hipple v. State, 80 Tex.Cr.R. 531, 191 S.W. 1150. The latter case was affirmed by a majority opinion, Judge Davidson dissenting. On rehearing, Judge Morrow, who succeeded Judge Harper, wrote the opinion reversing the case and stated the law which we consider to be controlling.
The State contends that inasmuch as the trial court found the jury could not agree, this case should be distinguished from the foregoing cases, which placed the reversal on the ground that the judge found there was no probability of an agreement. Plausible as is this argument, we do not consider it in accord with the holdings of this court and are reluctant to set aside the law as it has been written by White, Hurst, Davidson and Morrow on a question so vital to personal rights.
Again, it is said the willingness of appellant to let the jury be discharged, as disclosed by his evidence on the hearing, should be construed as an...
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Favorite v. State
...to object to a mistrial did not waive his right not to be put in jeopardy twice for the same offense. Citing to Davis v. State, 164 S.W.2d 686 (Tex. Crim. App. 1947), Appellant argues that a waiver of double jeopardy must be made by the defendant himself. We find Davis factually distinguish......
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State v. Connors
...quick discharge of a hung jury would he held a violation of the defendant's right to a verdict of that jury; and in Davis v. State (1942), 144 Tex.Cr.R. 474, 164 S.W.2d 686, it was held that the discharge of a jury, after deliberating only an hour and a half, supported a claim of double jeo......
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Clemensen v. Municipal Court
...proceedings, and thus would seem to come within the scope of the right to counsel. The Court of Criminal Appeals of Texas (Davis v. State, 164 S.W.2d 686) has reversed a conviction obtained after the first jury had been discharged in the absence of defense counsel. However, in Davis, the tr......
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S.G., Jr., Matter of
...to object. Id. "[C]onsent will not be inferred from a silent record." Garner, 858 S.W.2d at 659; see also Davis v. State, 144 Tex.Crim. 474, 164 S.W.2d 686 (1942). In this case, S.G.'s counsel did not object to the trial court's declaration of a mistrial; he simply asked whether the court w......