Ex Parte Massey
| Decision Date | 09 January 1946 |
| Docket Number | No. 23312.,23312. |
| Citation | 191 S.W.2d 877 |
| Court | Texas Court of Criminal Appeals |
| Parties | Ex parte MASSEY. |
Appeal from District Court, San Jacinto County; W. B. Browder, Judge.
Proceeding ex parte O'Neal Massey for a writ of habeas corpus to obtain discharge from prison, consolidated with an appeal from a nunc pro tunc judgment correcting the judgment which had been erroneously entered on the court's minutes in a prosecution of present relator under an indictment charging him with robbery by assault and of having theretofore been convicted of two successively committed felonies.
Affirmed and relator remanded to Warden of Penitentiary of Texas.
O'Neal Massey, pro se.
Jas. M. Crane, Dist. Atty., of Conroe, and Ernest S. Goens, State's Atty., of Austin, for the State.
There is before the court an appeal from a nunc pro tunc judgment, and also a habeas corpus proceeding. The two are so commingled that our State's Attorney has filed a motion that the two matters be consolidated and disposed of in one opinion. The motion is granted, and the causes are consolidated.
The record presents the following situation. Appellant was indicted in Cause No. 5070 in the District Court of San Jacinto County charged with robbery by assault. The indictment also alleged that appellant had been theretofore convicted of two successively committed felony offenses. This case was tried in March, 1941, the jury finding that appellant was guilty of the primary offense of robbery by assault, and also that he had previously been convicted of the two felonies which had been properly averred in the indictment. Under the provision of Article 63, P.C., the only punishment was life imprisonment in the penitentiary. In entering the judgment in the court minutes the clerk used a blank form of judgment and inadvertently omitted to insert in the blank left for it that the punishment was assessed at imprisonment in the penitentiary for life. The sentence of the court pronounced against appellant was for life imprisonment in the penitentiary. No appeal was prosecuted.
Appellant applied to the District Judge of Walker County for a writ of habeas corpus, claiming that by reason of the omission of the penalty in the judgment referred to he was entitled to be discharged from the penitentiary. On the 19th of July, 1945, the District Judge of Walker County issued the writ, reciting in his order that "all the records, books, papers and witnesses would be available at Cold Springs in San Jacinto County," and directed the Warden of the penitentiary to produce appellant before the District Judge in San Jacinto County on July 26 "then and there to show cause why the said O'Neal Massey is restrained of his liberty." The writ having already been granted, the proper proceeding would have been for the District Judge in San Jacinto County to have ascertained the facts and certified them to this court with the application in compliance with the Act of the 48th Legislature, Ch. 233, p. 354, Vernon's Ann.C.C.P. art. 119, requiring the writ to be made returnable to the Court of Criminal Appeals after conviction in felony cases.
When it was called to the notice of the District Attorney of San Jacinto County that appellant was seeking release from the penitentiary because of the defect in the judgment in Cause No. 5070 he filed in the district court a proper motion asking that a nunc pro tunc judgment be entered in said cause making the court minutes reflect the judgment which was in fact rendered in said Cause No. 5070. After notice to appellant, and upon a hearing the District Court of San Jacinto County on July 26, 1945, directed the entry of a nunc pro tunc judgment correcting the judgment which had been erroneously entered on the court minutes in 1941. From this nunc pro tunc judgment appellant gave notice of appeal to this court.
Instead of certifying the facts ascertained in the habeas corpus hearing to this court as required by the Acts of the 48th Legislature, supra, the Judge of the District Court of...
To continue reading
Request your trial
-
Ex parte Renier
... ... 96, 331 S.W.2d 940 (1960); Ex parte Gomez, 241 S.W.2d 153 (Tex.Cr.App.1951); Ex parte Clubb, 155 Tex.Cr.R. 285, 234 S.W.2d 874 (1950); Ex parte Pearce, 230 S.W.2d 830 (Tex.Cr.App.1950); Ex parte Benson, 153 Tex.Cr.R. 598, 223 S.W.2d 934 (1949); Ex parte Massey, 149 ... Page 360 ... Tex.Cr.R. 172, 191 S.W.2d 877 (1946). By this the Court meant only that cases coming here pursuant to the provisions of Art. 119 (now Art. 11.07, Sec. 2) do, in fact, represent an exercise of this Court's original, as opposed to appellate, jurisdiction in habeas corpus ... ...
-
Massey v. Moore
...Court of Walker County, Texas, at its May term, 1945, has been prosecuted through the Court of Criminal Appeals of Texas, 149 Tex.Cr.R. 172, 191 S.W.2d 877, with review denied by the Supreme Court of the United States, 329 U.S. 674, 67 S.Ct. 109, 91 L.Ed. 595. The principal grounds for that......
-
Massey v. Moore
...unsuccessful attempts to obtain a hearing on the question, see In re Massey, 327 U.S. 770, 66 S.Ct. 954, 90 L.Ed. 1000; Ex parte Massey, 149 Tex.Cr.R. 172, 191 S.W.2d 877; Massey v. Moore, 5 Cir., 173 F.2d 980. ...
-
Ex parte Brewer
...but is fixed at confinement in the penitentiary for life. See Price v. State, 150 Tex.Cr.R. 161, 199 S.W.2d 168; Ex parte Massey, 149 Tex.Cr.R., 172, 191 S.W.2d 877; Ex parte Eason, Tex.Cr.App., 229 S.W.2d We agree that appellant is entitled to have his sentence construed as an indeterminat......