Fitzgerald v. State
| Decision Date | 08 April 1931 |
| Docket Number | No. 14123.,14123. |
| Citation | 38 S.W.2d 329 |
| Parties | FITZGERALD v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Wichita County; P. A. Martin, Judge.
Dick Fitzgerald was convicted of burglary, and he appeals.
Affirmed.
J. W. Culwell, of Amarillo, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The offense is burglary; the punishment, confinement in the penitentiary for five years.
A house belonging to G. W. Sosebee was entered by breaking. The owner had a lamp and rug in the house. According to the testimony of the state, this property was found in the possession of appellant. An accomplice witness by the name of Churchill testified that he and appellant burglarized the house and took the rug and lamp therefrom. It was appellant's theory, given support in the testimony of his witnesses, that he bought the property claimed by the injured party. Appellant did not testify in his own behalf.
The witness Churchill had been convicted of a felony subsequent to the taking effect of chapter 13, § 1, Acts of the Thirty-Ninth Legislature (1926) First Called Session (Vernon's Ann. C. C. P. art. 708). He had been incarcerated in the penitentiary, but had subsequently escaped. At the time of the trial he had been recaptured and placed in jail awaiting his return to the penitentiary. The transaction out of which the prosecution against appellant grew had not been committed on a prison farm owned by the state or of which it was lessee; it had not been committed in any jail in the state, or on any railroad, train, or highway along which prisoners were being transported under guard. The witness Churchill had not been pardoned at the time he was called to testify against appellant. Appellant sought to disqualify the witness on the ground that he was incompetent under the terms of the act of the Legislature to which reference has been made. We quote the pertinent part of the act as follows:
Prior to the taking effect of the Acts of 1925, page 145, c. 27, the statute provided that all persons convicted of a felony were incompetent to testify in criminal actions unless the conviction had been legally set aside, or unless the convict had been legally pardoned for the crime of which he had been convicted. Article 788, Vernon's Code of Criminal Procedure, Annotated, 1916. It was provided in the acts of 1925 that persons convicted of felony and confined in the penitentiary could not testify in person in any court for the state or for the defendant. It was further provided that the defendant could take the deposition of such convict as in other criminal cases. Construing the act last referred to, this court held in Alexander v. State, 103 Tex. Cr. R. 620, 281 S. W. 852, and in Brunett v. State, 26 S.W.(2d) 208, that an unpardoned convict had the same right to testify as a pardoned one, provided he was not incarcerated in the penitentiary at the time of the trial. In Brunett's Case, in referring to the Acts of the Thirty-Ninth Legislature, First Called Session, chapter 13, this court said that the language of said act was not clear.
Article 708, C. C. P., as amended (Vernon's Ann. C. C. P. art. 708), provides that "all persons are competent to testify in criminal cases except the following." Two exceptions are set forth, namely, insane persons and children, when shown to be comprehended by the terms of the exceptions. Persons convicted of a felony are not...
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Lockhart v. State, 23543.
...the penitentiary or some other place mentioned in Sec. 3 of said Act. Appellant must have overlooked what was said in Fitzgerald v. State, 118 Tex.Cr. R. 61, 38 S.W.2d 329. In the second paragraph of the opinion it is "* * * The transaction out of which the prosecution against appellant gre......