Ex parte Clubb, 25152

• Decision Date: 06 December 1950
• Docket Number: No. 25152,25152
• Citation: 234 S.W.2d 874,155 Tex.Crim. 285
• Parties: Ex parte CLUBB.
• Court: Texas Court of Criminal Appeals

Page 874

234 S.W.2d 874

155 Tex.Crim. 285

Ex parte CLUBB.

No. 25152.

Court of Criminal Appeals of Texas.

Dec. 6, 1950.

None on appeal.

George P. Blackburn, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

This is a proceeding by Roy Royd Clubb, an inmate of the penitentiary, seeking his release because of a void judgment entered on his plea of guilty before the court, without a jury, in the 46th District Court of Wilbarger County, Texas on the 14th day of January, 1946. The punishment assessed by the judgment reads: '* * * that he be punished by confinement in the State Penitentiary for a term of not less than five years nor more than fifteen years * * *.'

We have frequently held such judgments to be void for uncertainty unless it contains a jury finding by which it may be made certain.

The procedure herein is quite irregular. It was filed in the 46th District Court of Wilbarger County on November 9, 1950.

It appears from the order entered on the 15th day of November, 1950, that relator was brought from the penitentiary for a hearing in the District Court of Wilbarger County, before the District Judge. This procedure was held improper in Ex parte Benson, Tex.Cr.App., 223 S.W.2d 934, at page 935, from which we quote: 'Article 119, C.C.P., authorizes the Court of Criminal Appeals to direct a district judge to take testimony in such proceedings and certify the same to this court. A district judge has no such power. It is our construction, however, that this Article authorizes this court to procure other evidence. While the District Judge of Denton County had no authority to transfer the matter to Bexar County, and the judge who heard the same had no authority to issue any order thereon, we do hold that this court has the authority to consider the evidence thus presented. This we are doing in this case in the interest of time. Had the certificate come to this court direct from the District Judge of Denton County, without the evidence accompanying it, the application is in such condition that evidence would not have been required and the State of Texas would have been saved the expense of transporting the prisoner to Bexar County for a hearing, as well as other expense in connection with the same. We wish to call attention to the language of Art. 119, C.C.P., directing the judge receiving the application, in case he grants the writ, to certify the same to this court. This he may do after hearing evidence or without it. In the event the application is not in compliance with the requirements of Article 126, C.C.P., it would then be the duty of the district judge to refuse...