Gould v. State

• Decision Date: 27 March 1912
• Citation: 146 S.W. 172
• Parties: GOULD v. STATE.
• Court: Texas Court of Criminal Appeals

146 S.W. 172

GOULD v. STATE.

Court of Criminal Appeals of Texas.

March 27, 1912.

Appeal from Dallas County Court, at Law; W. F. Whitehurst, Judge.

O. F. Gould was convicted of violating the Sunday law, and he appeals. Affirmed.

Walker & Williams, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted in the county court of Dallas county at law under the following information: "Now comes R. M. Clark, county attorney of Dallas county, state of Texas, and presents in and to the county court of Dallas county at law, state aforesaid, that one O. F. Gould, heretofore, on the 16th day of April, A. D. 1911, in the county and state aforesaid, was the agent and employé of the Interstate Amusement Company, a corporation which was then and there the proprietor of a place of public amusement, to wit, a theater, and he, the said O. F. Gould, as such agent and employé did then and there on said last-named date, same being Sunday, unlawfully open and permit to be open said theater for public amusement, and did then and there on said Sunday permit a theatrical performance to be given and exhibited in said theater for public amusement, and for admission to which a fee was then and there charged. And the county attorney aforesaid further presents in and to said county court of Dallas county at law that heretofore, and prior to the commission by the said O. F. Gould of the offense which is hereinbefore charged against him, he, the said O. F. Gould, was duly and legally on, to wit, the 19th day of December, A. D. 1910, tried upon a complaint then and there legally pending against him in the corporation court of the city of Dallas, Texas, and which said court then and there had jurisdiction of the said cause; and the said O. F. Gould was in said court then and there convicted of an offense of a like character as that hereinbefore charged against him in and by this information; said cause in said corporation court of the city of Dallas, Texas, being upon the docket of said court, numbered 3,772." And then follows additional counts charging that appellant had been convicted of an offense of a like character on the 30th day of December, 1910, and on the 23d day of March, 1911. He was convicted under all counts, and his punishment assessed at $200.

Appellant filed a motion to quash the information on the ground that "article 1014 of the Penal Code is void on account of being vague, indefinite, and uncertain as to the penalty, and that the Legislature did not provide whether the maximum penalty should be twice or four times the maximum penalty, or twice or four times the minimum, or twice or four times any certain penalty between the maximum and minimum penalties, and on the further grounds that the additional counts to the first count in the information did not charge that the offense of which the defendant had been convicted was the `same offense' as that charged in the first count."

There are five of these cases pending in this court in which the same question as to the validity of the information is involved. Article 1014 of the Penal Code reads as follows: "If it be shown on the trial of a misdemeanor that the defendant had been once before convicted of the same offense, he shall on a second conviction received double the punishment prescribed for such offense in ordinary cases; and upon a third or any subsequent conviction of the same offense, the punishment shall be increased so as not to exceed four times the penalty in ordinary cases."

The Legislature, the lawmaking power of the state, has the right to define offenses and affix penalties therefor, and also has the right and power to provide that, if a person persists in violating a provision of the Penal Code, the punishment shall be in a greater amount than for the first violation. It has the power and the right to provide that a person convicted for the first time of any offense shall be punished in a named way and amount, and, if convicted a second time of that or any other offense, the punishment shall be in a named way or given amount. This is a power lodged within their discretion, and the only office of the courts is to apply and to enforce the law as they have deemed advisable to enact it. In providing that any proprietor of any place of public amusement, or the agent or employé of any such person, who shall permit his place of public amusement to be open for public amusement on Sunday shall be fined in any sum not less than $20 nor more than $50, and further providing that, in the event of a second conviction, he shall receive double the punishment prescribed, and upon a third or any subsequent conviction the punishment shall be increased to an amount not exceeding four times the penalty prescribed for the first violation, is but an exercise of the discretion confided to the legislative branch of the government, and with which the courts have no jurisdiction other than to enforce the law as it has been written. The plain construction of the law is that the punishment shall not be less than four times the minimum nor more than four times the maximum. The court properly overruled the motion to quash the information on the grounds named. The question raised by appellant's motion is fully discussed in the cases of Muckenfuss v. State, 55 Tex. Cr. R. 216, 117 S. W. 853, and Kinney v. State, 45 Tex. Cr. R. 500, 79 S. W. 570, and we do not deem it necessary to further discuss it.

2. The first bill of exception relates to the action of the court in overruling the motion for new trial, and each ground thereof will hereinafter be discussed in disposing of the case.

3. In the second bill of exceptions, it is urged that the court erred in permitting the county attorney to introduce in evidence the entries on page 444 of the docket and minutes of the corporation court of the city of Dallas: "Minutes Corporation Court. 19th of December, 1910. In the City of Dallas, Tex., Court met in regular session. Present and presiding Hon. W. L. Mathis, Judge; Hon. C. F. O'Donald; J. W. Ryan, Chief of Police; D. J. Tydings, Clerk. Whereupon the following proceedings were had: Judge's Orders. The State of Texas v. O. F. Gould, No. 3,772, charged with violating Sunday Law; plea of guilty, fined $20.00." Various grounds were urged to the introduction of this testimony, all of which were passed on by this court in the case of Muckenfuss v. State, 55 Tex. Cr. R. 216, 117 S. W. 854, and under the holding of this court in that case the court did not err in admitting this testimony. The validity of the judgment entry, whether or not it is sufficient in law in that case, is not the question; the question in this case being: Had the defendant been convicted of a similar offense prior to this prosecution, and, if so, the judgment entry would be but evidence of that fact, and any legitimate testimony would be admissible to prove that fact, and, even though the judgment entry should be lacking in form, it would be admissible in evidence to prove that he had pleaded guilty to a similar charge.

4. In the next bill of exceptions, it is complained that Deputy Sheriff Edling was permitted to testify in answer to the questions: "What was printed on the tickets you saw at the Majestic Theater on April 16, 1911?" And: "What was on the electric sign outside of the theater on April 16, 1911?" Also: "Was there a bulletin board at and in front of the Majestic Theater on April 16, 1911, and, if so, what was on it?" When the questions were propounded to Mr. Edling, the defendant objected on the grounds that the answers to them would be secondary evidence, and the court sustained the objection, whereupon the state offered in evidence a subpœna duces tecum wherein the sheriff of Dallas county was "authorized and commanded to summon O. F. Gould (defendant), and which commanded that he bring with him six downstairs tickets used on the following dates, one of which was the date on which this defendant was being prosecuted for permitting the theater to be open, and programs used for each of said dates, or secondary evidence will be introduced on the trial of this case." The defendant then objected to the introduction of this subpœna on the various grounds named in the bill of exceptions; the court, in approving said bill, stating: "The county attorney did not read to the jury this subpœna duces tecum, but, to meet the defendant's objections, read to the court that part of the subpœna issued in this cause to produce in open court at this trial said tickets, or on failure to do so secondary evidence would be used. The defendant did not request the retirement of the jury while the court was satisfying himself that the county attorney had made due efforts to secure tickets used on the 16th day of April, 1911, at the Majestic Theater. The county attorney in no manner attempted to compel defendant to give evidence against himself, but used this means to show his efforts to obtain the right to use secondary evidence. The evidence was admitted for the purpose of showing proprietorship in the Interstate Amusement Company. Not only did these tickets show this, but several programs gotten at this theater by the witness Edling on dates shortly prior to this date showed that the Interstate Amusement Company was the proprietor of this theater. On page 4, § 2, of this bill, defendant says it is impossible to have produced these tickets and gives his reasons. The court is of the opinion that the billboard could not have been brought into court, as same was too large. This applies to the electric sign also."

The defendant accepted the bill as thus qualified, and files the same. It has been held by this court in the case of Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368, that, in order to have revised on appeal the action of the trial court in modifying, change ing, or contradicting a bill of exceptions, the defendant must have objected to such action at the time, and...