Dupree v. State

• Decision Date: 26 May 1909
• Citation: 120 S.W. 871
• Parties: DUPREE v. STATE.
• Court: Texas Court of Criminal Appeals

120 S.W. 871

DUPREE v. STATE.

Court of Criminal Appeals of Texas.

May 26, 1909.

On Rehearing June 23, 1909.

Appeal from Brown County Court; A. M. Brumfield, Judge.

Milt Dupree appeals from a conviction. Affirmed.

Harrison & Wayman, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

This is an appeal from a judgment of conviction had in the county court of Brown county on October 13, 1908, convicting appellant of unlawfully selling intoxicating liquors in said county and assessing his punishment at a fine of $50 and 30 days' confinement in the county jail.

In this case a statement of the facts was filed, which was duly approved by the court, and in the case there is properly raised the issue and question as to the validity of appellant's plea of former conviction. This plea in substance contained averments that appellant had heretofore been convicted of the same offense, and is well drawn, and is, we think, sufficient, if sustained by the evidence, in that it in terms avers a conviction had in the county court of Brown county on the 28th day of July, 1907, convicting appellant of the sale of intoxicating liquors on a sale to the witness Couch on a general charge, and is followed by the allegation that the "offense for which he is now being prosecuted is, under the law, one and the same transaction and offense as that for which he has heretofore been convicted, and that said judgment has not been set aside or reversed, but remains in full force and effect, and that he, affiant, is one and the same person who was thus tried and convicted, and against whom the judgment aforesaid was rendered in said court, and, further, that the evidence of the witness Couch upon which the judgment aforesaid was predicated was to the substance and effect that he bought various and sundry drinks of whisky and intoxicants from appellant on or about the day alleged in this case, all of which was before the jury in the cause in which he was convicted." On the trial appellant offered in evidence in support of his plea of former conviction the indictment in said cause No. 2,989 in which he had theretofore been convicted, which charges the sale of intoxicating liquor by appellant to J. C. Couch on or about the 10th day of April, 1907, the judgment of conviction had thereon in the county court of Brown county, Tex., on the 28th day of July 1907, and the charge of the court submitting this issue to the jury, wherein the court gives this charge: "Now, if you believe from the evidence beyond a reasonable doubt that the defendant, in Brown county, Tex., on or about the 10th day of April 1907, and since the 16th day of November, 1906, next before the filing of the indictment herein, did unlawfully sell one drink of whisky, the same then and there being intoxicating liquor, to J. C. Couch, as charged, and that the sale of intoxicating liquor had theretofore been and was then and there prohibited in said Brown county under and by the laws of this state, then you will find defendant guilty and assess his punishment by a fine of not less than $25 nor more than $100 and imprisonment in the county jail for not less than 20 nor more than 60 days." There was no proof offered as to what had become of this judgment—as to whether it was final, had been set aside, or appealed from. As a matter of fact it had been appealed from, the appeal was then pending and is to-day before this court.

Appellant relies to sustain his plea upon the decisions of this court in the case of Piper v. State, 53 Tex. Cr. R. 550, 110 S. W. 899, and Alexander v. State, 53 Tex. Cr. R. 553, 110 S. W. 918. As applied to the facts of those cases, there is and can be no doubt about the correctness of the decisions therein rendered. It is our judgment that plea of former conviction in this case should not have been submitted at all, and furnishes absolutely no protection to appellant. The court below, as all the courts of record, was authorized, and indeed required, to take notice of his own proceedings and records. The court and judge presiding knew, and was charged by law with knowing, that the conviction in the original case, the basis of the plea, had been appealed from, and on such appeal the judgment and its effect suspended. It was held in the case of Maines v. State, 37 Tex. Cr. R. 617, 40 S. W. 490, that on a plea of former conviction, where it appeared that defendant's motion for a new trial in the case in which the conviction was had was still pending, it was his duty to ask for a postponement of his trial; and it was his right to have a final disposition of the first case before being forced to trial in the second, in order that he might avail of such disposition on his plea of former conviction. In discussing the case Judge Henderson says: "In our opinion, it was the duty of appellant, when he was placed on trial, in view of the fact that a motion for a new trial was pending in said former case, to have asked that the case then called for trial be postponed until the former case should be finally disposed of. It was his right to have a final disposition made of said other case before he was forced to trial in the last-mentioned case, in order that he might set up such final disposition. This was not done. The record shows that there was really no final judgment against the appellant when he set up his special plea, and it further shows that, while a new trial was then pending, before the record was made up and the bill of exceptions approved by the court in this case, a new trial was granted." To the same effect, see Brown v. State, 43 Tex. Cr. R. 272, 64 S. W. 1056; Washington v. State, 35 Tex. Cr. R. 156, 32 S. W. 694; Powell v. State, 42 Tex. Cr. R. 11, 57 S. W. 94.

This question came before this court in the early case of Thompson v. State, 9 Tex. App. 649, in which Judge White says: "The position of counsel, that the defendant had once before been placed in jeopardy and could not be again tried, though supported by an able and ingenious argument, in which numerous authorities are cited, is wholly untenable. The circumstances are briefly these: The defendant had previously been tried and convicted. On his own appeal the conviction was set aside, the judgment reversed, and the case remanded for a new trial. 4 Tex. App. 44. The effect of this action of the Court of Appeals upon the defendant's case was to place his case in precisely the same condition as if the district court had granted a new trial and there had been no appeal. Code Cr. Proc. 1879, art. 876. In such a case the doctrine of former jeopardy has no application whatever, for the simple reason that there had been no final adjudication of the case. Vestal v. State, 3 Tex. App. 648, and authorities there cited; Simco v. State, 9 Tex. App. 338. The action of this court on the former appeal is known to us, and it is shown by the record that it was known to the court below on the present trial. The plea of former jeopardy was properly stricken out on the motion and demurrer of the county attorney." It will be noted by the language of this case that an appeal had been had and a reversal obtained in this court. In many cases cited in the books (Dubose v. State, 13 Tex. App. 418, and Parchman v. State, 2 Tex. App. 239, 27 Am. Rep. 435) it appeared that a motion for a new trial had been granted, and for these reasons the plea of former conviction was held unavailable. It would, indeed, be a singular doctrine to hold that because in one case, in prosecutions covering many months, a conviction for violating the local option law had been had, while contesting...