Donahoo v. State, 27863
| Decision Date | 30 November 1955 |
| Docket Number | No. 27863,27863 |
| Citation | 285 S.W.2d 952,162 Tex.Crim. 388 |
| Parties | Mary DONAHOO, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Burks & Brown, Lubbock, for appellant on rehearing only.
Leon B. Douglas, State's Atty., Austin, for the State.
This is a conviction for a violation of the so-called hot check law, art. 567b, Vernon's P.C., with punishment assessed at a fine of $300 and confinement in jail for one year and one day.
The record is before us without a statement of facts or bills of exception. All proceedings appear to be regular, and nothing is presented for review.
The judgment is affirmed.
On Motion for Rehearing.
For the first time on motion for rehearing we have been furnished with a very comprehensive brief in which the constituionality of Article 567b, V.A.P.C. (giving check, draft or order without sufficient funds) is attacked section by section. The constitutionality of the presumptions created by the statute are particularly challenged.
While it is true that an accused may at any stage of the proceedings against him attack the constitutionality of a statute under which he has been convicted, we do hold that it is incumbent upon him to show that he was convicted under that portion of the statute the constitutionality of which he questions. Otherwise, we would be writing a declaratory judgment. Since we have been furnished with no statement of facts, we have no way of knowing that any of the presumptions set forth in the statute were relied upon in this prosecution.
The appellant next complains that the complaint and information are insufficient to support a judgment. No motion to quash the information is found in the record. Reliance is had upon Mathis v. State, 113 Tex.Cr.R. 164, 18 S.W.2d 920. In that case this Court held that an information was fatally defective because (1) it did not set forth the false pretenses by means of which the property was obtained, (2) it did not allege that the false pretense was untrue, and (3) it did not describe the property acquired with certainty. So far as we can determine, this is the only case which could be construed as holding that the failure to describe the property acquired with definiteness and certainty may be asserted as a grounds for reversal when raised for the first time on appeal. In Trigg v. State, 117 Tex.Cr.R. 536, 34 S.W.2d 878, we pointed out that such a question was one...
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Duncan v. Evans
...As a general rule, neither this court nor the Supreme Court of Texas write advisory opinions. Donahoo v. State, 162 Tex.Cr.R. 388, 285 S.W.2d 952 (Tex.Cr.App.1955); State v. Parr, 293 S.W.2d 62 (Tex.Cr.App.1956); Ex parte Usener, 391 S.W.2d 735 (Tex.Cr.App.1965); Ex parte Conner, 439 S.W.2d......
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Richardson v. State
...Watson case, the prosecutor finds that, in 1955-56, after the Gibbs case was written, a conviction was sustained in Donahoo v. State, 162 Tex.Cr.R. 388, 285 S.W.2d 952, under Art. 567b, He next finds Goodwin v. State, Tex.Cr.App. 320 S.W.2d 852, where a conviction under Art. 567b, Vernon's ......
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Threlkeld v. State
...which he questions. State v. Scott, 460 S.W.2d 103 (Tex.1970); Ex parte Usener, 391 S.W.2d 735 (Tex.Cr.App.1965); Donahoo v. State, 162 Tex.Cr.R. 388, 285 S.W.2d 952 (1956). This Court will not pass on the validity of any part of the Controlled Substances Act which is not shown to have been......
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Oakley v. State, 30177
...alleged in the indictment is not of such nature as would require a reversal when raised for the first time on appeal. Donahoo v. State, 162 Tex.Cr.R. 388, 285 S.W.2d 952; Crawford v. State, Tex.Cr.R., 305 S.W.2d 362; Johnson v. State, Tex.Cr.R., 310 S.W.2d In his motion for a new trial appe......