Gardner v. State

• Decision Date: 06 November 1940
• Docket Number: No. 21223.,21223.
• Citation: 144 S.W.2d 284
• Parties: GARDNER v. STATE.
• Court: Texas Court of Criminal Appeals

144 S.W.2d 284

GARDNER v.STATE.

No. 21223.

Court of Criminal Appeals of Texas.

November 6, 1940.

Appeal from District Court, Houston County; Sam Holland, Judge.

Joe Gardner was convicted of cattle theft, and he appeals.

Reversed and remanded.

J. F. Mangum, of Crockett, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was charged with cattle theft, and pleaded not guilty, and filed an application for a suspended sentence.After evidence was heard herein appellant withdrew his plea of not guilty, and was by the court allowed to plead guilty to the charge in the indictment, and the jury found him guilty, in response to the court's charge, and assessed his penalty at confinement in the penitentiary for a term of two years, refusing to suspend his sentence.

We are at a loss to see why the trial court allowed the appellant to withdraw his plea of not guilty after the testimony of the first witness was heard.Ed Tate, the first witness, the man whose cow was alleged to have been stolen by appellant, testified on cross-examination by the appellant's attorney that appellant was of unsound mind.To the same effect was the testimony of Jesse Gardner, appellant's father, and also the testimony of J. A. Harrison, the appellant's employer, and also Ernie Bruton testified to the same substantial effect, that appellant was of unsound mind.At this point the court allowed appellant to withdraw his plea of not guilty and accepted a plea of guilty, whereupon Dr. Sam Barclay, a practicing physician and surgeon, was placed upon the stand by the State and testified that, according to his judgment, the appellant was of sound mind, but very timid and shy.

The trial court should not have allowed the withdrawal of the first plea of not guilty, but instead, under the circumstances, should have proceeded under the plea of not guilty and instructed the jury the law in...