Ex parte King, 25276
| Decision Date | 16 May 1951 |
| Docket Number | No. 25276,25276 |
| Citation | 240 S.W.2d 777,156 Tex.Crim. 231 |
| Parties | Ex parte KING. |
| Court | Texas Court of Criminal Appeals |
Bowen C. Tatum, H. E. Tarpley, Dallas, for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
Relator, an inmate of the state penitentiary, was convicted on October 9, 1933, in Cause No. 21,605 in the 15th Judicial District Court of Grayson County for the offense of burglary and sentenced to two years' confinement in the state penitentiary.
Again, on the same day and in the same court, in Cause No. 21,606, he was convicted of theft over $50 and sentenced to two years' confinement in the state penitentiary.
Further, in the same court and on the same day, in Cause No. 21,607, he was convicted of the offense of robbery and sentenced to fifteen years' confinement in the state penitentiary.
It is shown that the judgment in Causes Nos. 21,605 and 21,606 were made cumulative of the original judgment in Cause No. 21,607, leaving the relator to serve nineteen years under the sentences pronounced in Grayson County.
At the time of the granting of this writ of habeas corpus, we had not been informed of the fact that the relator had been convicted in Wichita County in Cause No. 8582 of that District Court while he was out on clemency and given ten years for swindling and repetition. This sentence was not to begin until April 15, 1947, so at this time we find that relator is not entitled to his discharge.
Therefore, this writ is denied and relator is remanded to the custody of the penitentiary authorities to serve out the terms of the sentences present against him at this time.
On Motion for Rehearing.
WOODLEY, Commissioner.
We are unable to comply with relator's request that we consider his attack upon the validity of the convictions in Bowie County notwithstanding that a sentence against him in the District Court of Wichita County has not been served. This court is not authorized to render a declaratory judgment, the sole ground upon which we can entertain jurisdiction being to determine whether or not relator is entitled to release from confinement or discharge. See Ex parte Neisler, 126 Tex.Cr.R. 26, 69 S.W.2d 422; Ex parte Richardson, Tex.Cr.App., 230 S.W.2d 538; Ex parte Padgett, Tex.Cr.App., 230 S.W.2d 813; and Ex parte Jones, Tex.Crim.App., 240 S.W.2d 776.
By supplemental application, it is alleged that the Wichita County conviction also is void (1) because appellant is adjudged to be guilty of 'swindling and repetition,' an offense unknown to the law, and (2) because the indictment is indefinite and is in fact two separate indictments, the first charging the offense of felony swindling and the second alleging only a prior conviction of felony theft.
A certified copy of the indictment is attached to the supplemental application from which indictment it appears that relator was charged in one count with the felony offense of swindling which count is concluded
There follows on a separate page the allegation 'that prior to the commission of the offense set out in and by the first count of this indictment by the said Ralph King he, the said Ralph King, was duly and legally convicted of a felony less than capital, and of like character and of the same nature as hereinbefore set out in and by the first count of this indictment, to wit:'
Such prior conviction is then described as a conviction in Cause No. 21,606 in the District Court of ...
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Hamilton v. McCotter, 84-1319
...(Tex.Crim.App.1963), which McCullough cites as authority for the proposition, nor the case cited in turn in Landers, Ex parte King, 156 Tex.Cr.R. 231, 240 S.W.2d 777 (1951), involved indictments that were alleged to have been other than properly returned by a duly constituted grand jury. As......
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Gray v. State, 13-81-296CR
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Steward v. State, 40898
...first count thereof is signed by the grand jury foreman. Even if true, the same would not constitute reversible error. Ex parte King, 156 Tex.Cr.R. 231, 240 S.W.2d 777. In Ex parte King, supra, it was held that the signature of the foreman of the grand jury not being essential to the validi......