Graham v. State, 20762.

• Decision Date: 24 January 1940
• Docket Number: No. 20762.,20762.
• Citation: 136 S.W.2d 830
• Parties: GRAHAM v. STATE.
• Court: Texas Court of Criminal Appeals

136 S.W.2d 830

GRAHAM v. STATE.

No. 20762.

Court of Criminal Appeals of Texas.

January 24, 1940.

Rehearing Denied February 21, 1940.

Appeal from Lamar County Court; R. V. Hammack, Judge.

Bernie Graham was convicted of possessing untaxed intoxicating liquor, and he appeals.

Affirmed.

Hutchison & Fisher, of Paris, for appellant.

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

GRAVES, Judge.

Appellant was convicted upon a plea of guilty to the possession of untaxed intoxicating liquor, and was by the court fined the sum of $100.

This appeal is predicated entirely upon the overruling of the motion for a new trial, and the bills of exception come to us in an irregular manner, to say the least. They consist of exceptions because the trial court failed to grant a new trial because of his failure to agree with appellant's attorney's contentions as set forth in certain paragraphs of such motion for a new trial; and again a bill of exceptions was reserved because the court refused to agree with the attorney's contention in a succeeding paragraph in said motion, and continuing in such a manner until practically all such paragraphs have been exhausted. We also note that the court qualifies the major number of such bills as follows: "All objections were made at hearing on motion for a new trial; no objections whatever during the trial of this case." To each of these qualifications appellant's attorney excepted. On what grounds we are at a loss to determine. The facts are undisputed that the court's qualification in each such instance is true, and one of the bases for a new trial offered by appellant herein, although it is not necessary nor do we consider such qualifications.

Appellant's contention is that he was an ignorant negro, and that some officers beat him up and took him to the court house, and told him if he did not plead guilty they would beat him again, and put him in the Federal court. That he did not know what he was being held for, nor that he had a right of trial by jury, nor a right to two days time in which to prepare for trial. That he was taken before the county judge, and did plead guilty, and was fined $100 by the judge. Appellant's attorney offers a further ground for a new trial in that he alleges that the complaint and information were not filed at the time the plea was entered, and therefore Art. 29, C.C.P., Vernon's Ann.C.C.P. art. 29, was violated.

There was a hearing had on the motion for a new trial, and the witnesses, with the exception of appellant, testified to ill treatment in but one instance. It seems that a liquor board inspector and a deputy inspector were watching a place where appellant was then located and saw him, when approached by a woman, go outside of such enclosure, and, after lifting some planks which covered a hole in the ground, saw him pour something in a glass and then return and prepare to hand this glass to another party. The inspector and deputy then came on the scene and demanded that appellant give them the glass which contained the liquid, whereupon appellant dashed such liquid, which was whisky, on the floor, and the inspector slapped appellant twice with his hand. They then went to the place where appellant had gotten this whisky, which was just outside the enclosure, and found five one-half pint bottles of corn whisky in a hole in the ground with no stamps attached thereto. Appellant was then taken to the county attorney's office, and the whisky was placed on the table. Assistant County Attorney Harrison said the inspector told him that he wanted to file on appellant for possession of untax paid liquor, and the attorney asked appellant what he wanted to do about it, and appellant said he was caught and wanted to plead guilty. He said he was guilty, and it was his whisky, and he could not do anything else but plead guilty. He said he wanted to plead guilty now, and the attorney wrote out the complaint and information, had them signed and filed, and went before the county judge, who entered the case on his docket. "The judge read the complaint and told the defendant what he was charged with, and asked him what he wanted to do, and he said he wanted to plead guilty, and he entered a plea of guilty. I filed the complaint and information before he entered a plea of guilty." Neither one of the arresting officers said a word to the defendant in the county attorney's presence about pleading guilty. Appellant asked for no lawyer, he asked for no time, he had no bruises perceptible, and said naught about anyone beating him up, and said nothing about any threats.

It also appears from the testimony that the assistant county attorney took this negro into the county judge's office, and gave the complaint and information to the county clerk, who in turn gave them to the county judge, and the judge then interrogated the appellant. The judgment of the court then recites that the appellant pleaded guilty, after being duly admonished by the court of the consequences thereof, and waived a trial by jury, and submitted his case to the court, and the court found him guilty, and assessed a fine of $100, the lowest under the law. The county clerk testified that these papers were handed to him for filing, and that he handed them to the county judge, and did not endorse a file mark thereon, nor place his name thereon until after the judge had entered the case on his docket, and heard the plea of guilty, but that the same were handed...