Hustead v. State

• Decision Date: 25 October 1922
• Docket Number: (No. 6590.)
• Citation: 251 S.W. 1074
• Parties: HUSTEAD v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1074

251 S.W. 1074

HUSTEAD v. STATE.

(No. 6590.)

Court of Criminal Appeals of Texas.

October 25, 1922.

Rehearing Denied June 13, 1923.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

George Hustead was convicted of conspiracy to commit theft, and he appeals. Affirmed.

McLean, Scott & Sayers, of Fort Worth, and Chas. L. Black, of Austin, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Conviction is for conspiracy to commit the crime of theft, with punishment at two years' confinement in the penitentiary.

Appellant went to trial on a plea of "not guilty." After the state's evidence was introduced the plea of "not guilty" was withdrawn and a plea of guilty entered. No bills of exception were reserved to any part of the proceedings, and no statement of facts adduced upon the trial accompanies the record. Appellant sought a new trial on the ground that his attorney coerced him into entering the plea of guilty. This necessarily raised an issue of fact for the consideration of the trial court. No bill of exception having been reserved to his action in overruling the motion for new trial, we are not in a position to review the question. What purports to be the evidence taken upon a hearing of the motion accompanies the record, but cannot be considered. The trial term adjourned July 4, 1921. The statement of facts in question was not filed in the court below until September 2, 1921. To be considered such a statement of facts must be filed within the term. Section 598, Branch's Ann. Pen. Code; Jurado v. State, 91 Tex. Cr. R. 490, 239 S. W. 617; Nothaf v. State, 91 Tex. Cr. R. 378, 239 S. W. 217, 23 A. L. R. 1374, and cases cited in both opinions. We also observe that many affidavits attached to the motion were taken before appellant's attorney. This has been repeatedly held to be objectionable.

The judgment will be affirmed.

On Motion for Rehearing.

Appellant has supplemented the record, and now raises a question which was in no way presented upon the original submission.

The second count of the indictment charged that C. A. McDonald, Terry Ballihorn, R. W. Burlsmith, Adolph Michna, George Hustead (appellant), Arthur Roberts, B. F. Beal, Ernest Tallen, and Freddie Bishop, conspired to commit felony theft. At the April term of court, 1921, Hustead, McDonald and Michna entered pleas of guilty. At the December term, 1921, the state dismissed as to Beal and Ballihorn. The record is silent as to Burlsmith, Roberts, Tallen, and Bishop. So far as we know, the prosecution is still pending as to them, as well as against McDonald and Michna.

The contention is now made that a new trial having been awarded McDonald and Michna, who were convicted at the same time as appellant, that a new trial should also have been awarded him, and that it was fundamental error not to have done so, and should be corrected by this court, notwithstanding no exception was taken to the court's action. As supporting this position cited People v. Labow, 282 Ill. 227, 118 N. E. 395; Reg. v. Gompertz, 115 English Reprint, 1491; State v. Jackson, 7 S. C. 283, 24 Am. Rep. 476; Isaacs v. State, 48 Miss. 234; Commonwealth v. McGowan, 2 Pars. Eq. Cas. (Pa.) 341; Feder v. U. S., 257 Fed. 694, 168 C. C. A. 644, 5 A. L. R. 370; Casper v. State, 47 Wis. 535, 2 N. W. 1117. Without reviewing the cases at length we think they are not decisive of the question before us in the condition we find the record in the instant case.

On May 21st there was filed a motion for new trial purporting to be for Hustead, Michna and McDonald. It was overruled on June 21st. It appears an amended motion was filed for McDonald and Michna, although it is not set out in the transcript. In the supplemental transcript it is shown that on July 1st the court granted a new trial to them on the amended motion, but the order expressly recites "said motion being a separate and distinct motion from any heretofore filed, and not being joined in any way by the defendant, Geo. W. Hustead." The ground upon which Michna and McDonald were granted new trials is not shown. In the absence of the facts proven we must presume everything in favor of the validity of the judgment and orders unless their incorrectness appears from the record. It may be...