Hughes v. State

• Decision Date: 04 December 1912
• Citation: 152 S.W. 912
• Parties: HUGHES v. STATE.
• Court: Texas Court of Criminal Appeals

152 S.W. 912

HUGHES v. STATE.

Court of Criminal Appeals of Texas.

December 4, 1912.

Rehearing Denied January 22, 1913.

Appeal from District Court, Potter County; Jno. W. Veale, Special Judge.

Luther Hughes was convicted of crime, and he appeals. Affirmed.

Cooper, Merrill & Lumpkin, of Amarillo, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was indicted for an assault with intent to murder. In the first trial he was convicted of an aggravated assault. That conviction on appeal was reversed by this court, and is reported in 62 Tex. Cr. R. 288, 136 S. W. 1068.

A sufficient statement is made on the former appeal to render it unnecessary to further restate the case on this appeal. When the cause was called in the district court for this trial, the appellant made a motion to transfer the case to the county court, contending that as appellant now could be tried and convicted only of an aggravated assault, which is a misdemeanor, that the district court no longer had jurisdiction to try the case. The court correctly overruled this motion, holding that the district court had jurisdiction to try it. Appellant cites us to the provision of the Constitution giving county courts and not district courts jurisdiction of certain misdemeanors and the statute (C. C. P. art. 98), stating that the county courts shall have exclusive original jurisdiction of misdemeanors, except those involving official misconduct, where the highest penalty or fine that may be imposed exceeds $200, and the case of Robles v. State, 38 Tex. Cr. R. 81, 41 S. W. 620. In our opinion the Constitution and statutory provision cited by appellant are not in point.

Our Constitution gives the district court exclusive jurisdiction in all criminal cases of the grade of felony. The indictment in this case was for a felony. Under our law, both statutory and decisions, where an offense charged by indictment is for a felony, but it consists of different degrees, the jury may find the defendant not guilty of the higher, but guilty of any inferior, grade, and in such case the district court, originally having exclusive jurisdiction, has it also for a lesser degree, though a misdemeanor. C. C. P. art. 771. Again, article 89, C. C. P., is: "Upon the trial of a felony case, whether the proof develop a felony or a misdemeanor, the court shall hear and determine the case as to any degree of offense included in the charge." Then article 843, C. C. P., is: "The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place." And article 945, C. C. P., is: "Where the Court of Criminal Appeals awards a new trial to the defendant, the cause shall stand as it would have stood in case the new trial had been granted by the court below." The case of Robles, supra, cited and relied upon by appellant, we think is in point against his contention. In that case there were two counts in the indictment. One for a felony, the other for a misdemeanor. The report of the case does not indicate whether appellant had been tried formerly for the felony and acquitted, or whether the state abandoned that and tried it on the misdemeanor count only, but the opinion holds, in effect, that, however the felony count was disposed of, it left only a misdemeanor count on which the case could be tried, and the district court had no jurisdiction. The opinion in that case on this point is: "If the indictment charges a felonious theft, * * * and on the trial the proof fails to show a felony, a misdemeanor conviction can be had. In that character of case the jurisdiction of the district court, having attached by reason of the felony charge, would not be lost by reason of the proof to sustain such felony. The averments of the indictment in that case showing a felony would confer jurisdiction upon the district court, and would exclude jurisdiction of the county court to entertain the indictment. The district court having acquired jurisdiction in such character of case could retain it to its final termination. To hold otherwise would lead to interminable confusion." To the same effect is Nance v. State, 21 Tex. App. 457, 1 S. W. 448, and cases therein cited.

Appellant also contends that the court erred in holding two of the jurors competent, and in not sustaining his challenge for cause thereof. The two bills presenting these questions, as a whole, show that these jurors were qualified, and did not disqualify themselves on their voir dire examination strictly in accordance with our statute and the decisions thereunder. Article 692, C. C. P., subd. 13, and decisions cited thereunder. Appellant, in oral argument, conceded that the statute and decisions are against him, but contended that they were wrong, and that this court should so hold. In our opinion the statute and the decisions are right, and we have no disposition to hold otherwise.

By another bill it is shown that, when this offense was first charged against appellant, he had an examining trial at which he was present, represented by an attorney, and cross-examined, or had the opportunity to cross-examine the witnesses against him. On that trial a witness by the name of W. R. Lewis testified. This testimony was identified, proven up in full, and offered in evidence on the trial. Appellant objected to the whole of it (1) because it is not shown that the witness was a nonresident of the state and at the time of the trial was residing beyond its limits; (2) a portion of said testimony was hearsay, and not in the presence of the defendant, and could not be binding upon him; (3) that the testimony was written down by the district attorney at the time, and not correctly so. The court in approving the bill explained it and stated that, while the testimony was written down by the district attorney, it was fully and correctly so, and was afterwards read over to, or read by, the witness, and signed by him. It will be noticed that appellant's objections were mere objections, not approved as facts by the court. Unquestionably part of the testimony was admissible. If we could look to the record outside of appellant's objections, the proof was clear that the witness had removed, and was residing permanently beyond the jurisdiction of this...