Donald v. State

• Decision Date: 19 June 1957
• Docket Number: No. 28882,28882
• Parties: B. F. DONALD, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 360

306 S.W.2d 360

165 Tex.Crim. 252

B. F. DONALD, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 28882.

Court of Criminal Appeals of Texas.

June 19, 1957.

Rehearing Denied Oct. 30, 1957.

Percy Foreman, Houston, Luther E. Jones, Jr., Corpus Christi, for appellant.

Sam H. Burris, Dist. Atty., Alice, Wallace Barber, Dist. Atty., Sam Marcos, H. A. Triesch, County Atty., New Braunfels, Sidney P. Chandler and Sam C. Ratliff, Former Asst. Attys. Gen., and Leon Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

Appellant was separately tried and convicted of the offense of conspiracy to commit a felony and his punishment assessed at confinement in the penitentiary for a term of five years.

The indictment was returned in the 79th Judicial District Court of Duval County on the 4th day of November, 1955. Upon the court's own motion, venue was changed to Hays County and thereafter the cause was transferred to the District Court of Comal County where trial and conviction was had from which appellant brings this appeal.

In view of our disposition of the case a recitation of the facts is unnecessary.

The indictment contains two counts, each of which charges appellant with the substantive offense of conspiracy and alleges that the offense was committed on or about the 1st day of September, A.D. 1951.

Appellant presented numerous exceptions to the indictment which were by the court overruled. Among those presented was the following: '(b) because it appears from the face of each count of the indictment that a prosecution for the offense therein charged against the defendant is barred by lapse of time.'

In the absence of a statute specifically fixing a limitation period within which an indictment for conspiracy may be presented, the provisions of art. 180, Vernon's Ann.C.C.P., are applicable which provide; 'An indictment for any other felony may be presented within three years from the commission of the offense, and not afterward; except murder, * * *.'

Art. 396, Vernon's Ann.C.C.P., prescribes the requisites of an indictment and requires in subdivision No. 6 that 'The time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation.'

From the allegation of the indictment it appears that the indictment was presented more than three years after the date the offense was alleged to have been committed.

In 23 Tex.Jur. 650, Sec. 41, it is stated: 'Whenever the offense is subject to limitation an indictment or information must show that it was committed within the period of limitation.' Under the decisions of this Court if the date alleged shows the offense to be barred by limitation, the indictment, information, or complaint so alleging is bad. 1 Branch's Ann.P.C., 2nd Ed., 456, Sec. 456; Blake v. State, 3 Tex.App. 149; Reed v. State, Tex.Cr.App., 13 S.W. 865; Harwell v. State, Tex.Cr.App., 65 S.W. 520; Bradford v. State, 62 Tex.Cr.R. 424, 138 S.W. 119; Herron v. State, 150 Tex.Cr.R. 475, 203 S.W.2d 225, and Dixon v. State, 161 Tex.Cr.R. 626, 279 S.W.2d 868.

The state argues in support of the indictment that the crime of conspiracy charged therein is a continuing offense, that each overt act done in pursuance of the conspiracy tolls the statute of limitation and that since the proof showed overt acts committed within the limitation period the offense charged was shown not to have been barred by limitation. Numerous cases from other jurisdictions including federal decisions are cited and relied upon by the state.

In passing upon the sufficiency of the indictment it does not become necessary to determine the question whether the substantive offense of conspiracy in this state under the provisions of arts. 1622-1626, Vernon's Ann.P.C., is a continuing offense.

The date which it is charged the conspiracy was entered into is beyond the period of limitation and the indictment does not allege the performance of any overt act in furtherance of the conspiracy occurring within the period of limitation.

In those jurisdictions where the crime of conspiracy is held to be a continuing offense the failure to allege the commission of an overt act within the period of limitation would render the indictment insufficient. See Pinkerton v. United States, 5 Cir., 145 F.2d 252. Nor would proof that overt acts were committed within the period of limitation suffice as the sufficiency of an indictment is measured by its allegations rather than the proof offered. Mealer v. State, 66 Tex.Cr.R. 140, 145 S.W. 353.

The state further argues in support of the indictment that the prosecution was not barred by limitation because the statute was tolled under the provisions of subdivisions 2 and 3 of art. 183, Vernon's Ann.C.C.P. by reason of the pendency of a prior indictment charging appellant with the same offense, returned by a grand jury of Duval County on July 16, 1954, and thereafter dismissed by the court on March 28, 1956.

These matters urged by the state as tolling the statute of limitation are not available to sustain the indictment because they were not alleged.

In 23 Tex.Jur. 630, Sec. 30, on the subject of Indictment and Information the rule is stated:

'The state is not bound to anticipate or negative defenses on the part of the accused but if the pleading shows on its face that the prosecution is barred by the statute of limitation, facts should be alleged which avoid the statute.'

We think the rule stated is sound and should be followed and is in keeping with the mandatory provisions of subdivision 6 of art. 396, supra, which requires that the time mentioned in an indictment be some date anterior to its presentment and not so remoted that the prosecution of the offense is barred by limitation and also with the well-established rule that the burden is on the state to show that the offense was committed within the period of limitation and the accused is not required to plead limitation as a defense. 1 Branch's Ann.P.C.2d Ed., 639, Sec. 661, and cases there cited. Such rule has also been announced and followed in other jurisdictions. See State v. Drum, Mo.1919, 217 S.W. 23; Combs v. Commonwealth, 1905, 119 Ky. 836, 84 S.W. 753; People v. McGee, 1934, 1 Cal.2d 611, 36 P.2d 378; Hollingsworth v. State, 1909, 7 Ga.App. 16, 65 S.E. 1077; People v. Ross, 1927, 325 Ill. 417, 156 N.E. 303; People v. Reiser, 1934, 240 App.Div. 36, 269 N.Y.S. 573 and State v. McNeal, 1925, 159 La. 386, 105 So. 381.

The provisions of art. 411, Vernon's Ann.C.C.P., that presumptions of law and matters of which judicial notice is taken need not be stated in an indictment does not obviate the necessity of the indictment alleging facts which avoid the statute of limitation. A court can take judicial knowledge of the contents of the court records including indictments but not of the identity of the parties or transactions alleged therein. Roguemore v. State, 111 Tex.Cr.R. 77, 11 S.W.2d 316.

The indictment being insufficient, the judgment is reversed and the prosecution ordered dismissed.

Opinion approved by the Court.

WOODLEY, Judge (dissenting).

The indictment herein, returned by a grand jury of Duval County on November 4, 1955, alleges that George B. Parr, D. C. Chapa, B. F. Donald, Jr. (appellant herein), Givens A. Parr and persons unknown to the grand jury entered into a conspiracy and agreed together to unlawfully and fraudulently take, misapply and convert to their own use $1,000 in money belonging to the Benavides Independent School District of Duval County.

The conspiracy was alleged to have been entered into on or about September 1, 1951.

The statute of limitation applicable to the offense here charged is art. 180, C.C.P., which provides that an indictment may be presented 'within three years from the commission of the offense.'

Art. 183, V.A.C.C.P. (as amended in 1941) reads:

'1. The time during which the accused is absent from the State shall not be computed in the period of limitation.

'2. The time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation.

'3. The term 'during the pendency,' as used herein, means that period of time beginning with the day the indictment, information, or complaint is filed in a court of competent jurisdiction and ending with the day such accusation is, by an order of a trial court having jurisdiction thereof, determined to be invalid for any reason.'

The indictment herein was returned while the State's motion for rehearing in Adame v. State, Tex.Cr.App., 283 S.W.2d 223, was pending in this Court and it was not until March 28, 1956, that a prior indictment against the same named defendants and others, with like allegations, was by 'an order of a trial court having jurisdiction thereof, determined to be invalid for any reason.' Under the circumstances the State could have alleged only that the persons charged had been previously indicted for the same offense (not that the prior indictment had been determined to be invalid by an order of a trial court or any other court, for that had not yet occurred.)

Both cases against appellant finly reached the District Court of Comal County where the distinguished Judge of that court entered the order dismissing the prior indictment because of the holding of this Court in Adame v. State, supra. The same judge later presided at the trial upon the present indictment.

There would be no question as to the soundness of the majority view that the indictment upon its face was fatally defective if, under the laws of this State, the offense was in fact barred by limitation.

Looking alone to art. 180, V.A.C.C.P. the indictment, having been presented more than three years after the date the offense was alleged to have been committed, was invalid.

But, as appellant agrees, art. 183, V.A.C.C.P. provides an exception to the general rule reflected by art. 396, C.C.P., and in determining whether the...