Hoskins v. State

• Citation: 163 S.W. 426
• Parties: HOSKINS v. STATE.
• Decision Date: 10 December 1913
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

163 S.W. 426

HOSKINS v. STATE.

Court of Criminal Appeals of Texas.

December 10, 1913.

On Motion for Rehearing, February 18, 1914.

Appeal from District Court, El Paso County; Dan M. Jackson, Judge.

Charles R. Hoskins was convicted of forgery, and appeals. Affirmed. Motion for rehearing overruled.

Stanton & Weeks, of El Paso, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

The appellant was convicted of forgery, and his penalty fixed at four years in the penitentiary. He filed a proper plea seeking to have the jury recommend that his sentence be suspended. The court properly submitted this question to the jury, and the jury refused to so recommend. He pleaded guilty. In his motion for new trial he alleged that he had agreed with the district attorney to plead guilty with the understanding from the district attorney that he should receive a sentence of two years, and it should be suspended. He further therein says that he understands that sentence can only be suspended by the court when recommended by the jury, and, the jury having failed to recommend the suspension of his sentence and the district attorney being unable to carry out the agreement with him, he thereupon asked that the verdict be set aside, he granted a new trial, another jury impaneled, and again try his case; that he still insists that he wants to plead guilty, and does not desire to avoid his agreement to that effect, but wants the state to carry out its agreement with him. This is the sole ground for a new trial. The judgment of the court on said motion shows that the court heard evidence thereon and after so hearing the evidence overruled the motion. What this evidence was the record in no way discloses. In his sworn plea, seeking a suspended sentence, he makes no allegation as to any agreement with the district attorney, but merely "states to the court that he has never heretofore been convicted of a felony in this or any other state, and makes application for suspended sentence, in case of conviction, as provided by law."

Under the circumstances we must conclude that the testimony heard by the district judge on his motion for new trial did not sustain his allegation, and that the action of the court in overruling his motion is correct. So that the judgment will be affirmed.

On Motion for Rehearing.

After the original opinion affirming this case was handed down appellant made a motion for rehearing, and for a writ of certiorari to require the clerk to send up the statement of facts and other data which had not been filed herein when the original opinion was handed down. We granted the writ of certiorari, and the clerk has now sent up, and there has been filed herein, the said papers. By them and the record in connection therewith it is shown that the term of court at which this conviction was had adjourned June 28, 1913. The court stenographer certifies that he was not called upon by appellant or his attorneys to prepare the statement of facts of the trial, nor that heard on his motion for a new...