Hipple v. State

• Decision Date: 20 December 1916
• Docket Number: (No. 4298.)
• Citation: 191 S.W. 1150
• Parties: HIPPLE v. STATE.
• Court: Texas Court of Criminal Appeals

191 S.W. 1150

HIPPLE v. STATE.

(No. 4298.)

Court of Criminal Appeals of Texas.

December 20, 1916.

On Motion for Rehearing, February 7, 1917.

Appeal from District Court, Galveston County; Clay S. Briggs, Judge.

C. Hipple was convicted of rape, and he appeals. Reversed.

W. E. Price, of Galveston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

On May 16, 1916, appellant was indicted for an attempt to rape a little girl three years old, tried and convicted on October 11, 1916, with his punishment assessed at the lowest prescribed by law. On June 16th, the case was called for trial, both parties announced ready, a jury was duly impaneled, sworn, etc., the indictment read, appellant pleaded not guilty, and the witnesses sworn and placed under the rule. The trial judge appointed Mr. Price, a practicing attorney of the court, to prepare and present appellant's plea for a suspended sentence, "and who with defendant's consent acted generally as his counsel" thereafter in the case. The state then placed the little girl on the stand, and she was examined on her direct examination by the state's attorney. The appellant's attorney cross-examined her, and then challenged her competency to testify. The judge then examined her, and thereupon held she was incompetent to testify. What her testimony was, is in no way shown by the record herein. The state then claimed surprise, and the solemn judgment of the court on this matter at the time adjudged was:

"Thereupon leave was granted the state to withdraw its announcement of ready with the consent of the defendant, and cause was continued by consent of state and defendant, and the jury discharged."

At the next term, on October 11th, the case was tried, which resulted in his conviction, as stated. At this trial he pleaded former jeopardy, alleging substantially the facts above shown, and that when the court held said little girl incompetent to testify, the county attorney then "withdrew his announcement of ready for trial and asked that the cause be continued until the next term of court. The court thereupon inquired if the defendant had any objection, and the aforesaid defendant's counsel, Mr. Price, replied that he had none. The defendant stood mute, neither objecting nor consenting in person. Whereupon the court discharged the jury and continued the cause." The court solemnly adjudged at the time as quoted above. The statute (article 616, C. C. P.) expressly prescribes:

"A continuance may be granted on the application of the state or defendant after the trial has commenced, when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial commenced, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had, or the trial may be postponed to a subsequent day of the term."

The trial court acted strictly under, and in accordance with, that statute. It has been in force and effect at least ever since the Codes were first adopted in 1856, and has been re-enacted by the Legislature every time the statutes have been revised since then. It specifically shows on its face that the object of the law, and the Legislature, was, that each side, the state as well as the accused, should have a fair trial, and if an unexpected occasion arose, at any time after the trial commenced, and before its conclusion, whereby it should be made to appear to the satisfaction of the trial court that the applicant, whether the state or defendant— the state in this instance—was so taken by surprise that a fair trial could not be had, to then grant a continuance. And under such circumstances jeopardy would not, and could not, attach, and the action of the trial judge should and must be sustained. When the contingency arises which makes it proper for the trial judge in his judicial discretion to grant a continuance under this statute, it would be wholly unnecessary for the defendant to consent. In fact, it could legally be granted over and against his active and express opposition, in which case jeopardy would not attach nor apply. In this instance, however, as solemnly adjudicated by the court at the time between the state and appellant, the state withdrew its announcement of ready, "with the consent of defendant, and cause was continued by consent of state and defendant."

We have another statute (article 757, C. C. P.), which provides that, even after all the trial has been had except the rendition of the verdict:

"If, after the retirement of the jury, in a felony case, any one of them becomes so sick as to prevent the continuance of his duty, or any accident or circumstance occurs to prevent their being kept together, the jury may be discharged."

This article has been expressly held constitutional by this court, and not in conflict with the jeopardy clause (article 1, § 14) of our Constitution, in Woodward v. State, 42 Tex. Cr. R. 193, 58 S. W. 135. In the opinion in that case many authorities sustaining said holding are cited. That decision, and authorities, are clearly applicable to article 616, C. C. P., above quoted.

As to whether or not appellant's said plea of jeopardy raised such an issue of fact as required the trial judge to submit the question to the jury, and prevented him from passing on it as a question of law, will now be discussed. The substance in full of the plea is given above. It is unnecessary to repeat it. The state by its answer first specially excepted thereto as follows:

"Because said pleading on its face shows that the court permitted the state to withdraw its motion of ready for trial, after the complaining witness had broken down on the witness stand and been declared incompetent to testify as a witness, and continued the cause, which was within the discretion of the court, and said pleading states no fact, or facts, showing any abuse of such discretion on the part of the court"

—and then next generally demurred to it as follows:

"Now comes the state by her county attorney and demur and except to the plea of former jeopardy filed herein, and say the same is wholly insufficient in law, and prays that same be not allowed."

The court expressly sustained both. Appellant did not amend his plea in any way, nor ask to do so, but merely excepted. The plea avers that upon the judge's ruling said little girl incompetent to testify, the county attorney withdrew his announcement of ready for trial, and asked that the cause be continued until the next term of court. The court thereupon inquired if the defendant had any objection, and his attorney replied that he (defendant) had none. The court did not inquire if the attorney had any objection, but if the defendant had any. The attorney did not reply that he, the attorney, had none, but that he, the defendant, had none. The defendant was present and necessarily heard the judge's inquiry of him, not of his attorney, and necessarily heard his attorney's reply, for him, that he, the defendant, had none. In no way by his plea did he aver that he did not hear, or did not know. He replied by and through his attorney that he had no objection. The fact, if so, that he "stood mute, neither objecting nor consenting in person," under the circumstances, cannot do away with the fact that he announced to the court at the time, when the court inquired of him if he had any objection, by his attorney, "that he had none." Nor did he, in his plea, aver that he did not consent, nor that his attorney had no authority to tell the judge that he, defendant, had no objection. The judge, in his presence and hearing, immediately, solemnly adjudged between him and the state:

"Thereupon leave was granted the state to withdraw its announcement of ready, with the consent of the defendant, and cause was continued, by consent of state and defendant, and the jury was discharged."

To which he makes no objection. It is settled in this state by express statute (article 22, C. C. P.) that the defendant in a criminal case for any offense may waive any right secured to him by law except a trial by jury in a felony case. It is also well settled by the decisions of this state that a defendant can waive former jeopardy, and he may do so in many different ways. Johnson v. State, 26 Tex. App. 631, 10 S. W. 235. Many other cases could also be cited. It is also well settled by a large number of decisions that, in matters of former jeopardy, the court can and must take judicial knowledge of all the proceedings in the cause pertaining thereto, both those that occurred at previous terms as well as what occurred when the trial on the main case was had and conviction resulted. In Schindler v. State, 17 Tex. App. 412, this court, when former jeopardy was pleaded, held:

"The law vests in the trial judge a discretion, under certain circumstances, to discharge a jury even in a felony case, without the consent of the defendant, and the exercise of such discretion will not be revised by this court, and will not be held to constitute jeopardy, except when it is made clearly to appear that such discretion has been abused."

In O'Connor v. State, 28 Tex. App. 290, 13 S. W. 14, the appellant therein pleaded former jeopardy, alleging that at a former term he was put upon trial and the jury was discharged by the court, without his consent and over his protest and without legal cause. The court said (28 Tex. App. 291, 13 S. W. 15):

"Jeopardy is a special defense, and the burden of establishing it clearly and satisfactorily rests upon the defendant."

Then, among other things, that it devolved upon the defendant to prove:

"(3) That, without his consent, and without legal cause, the trial court discharged the jury trying him before said jury had rendered a verdict in said cause. Until these essentials of jeopardy were established affirmatively by the defendant, the presumption would prevail that the trial court in discharging the jury acted...