Jones v. State

• Decision Date: 05 February 1941
• Docket Number: No. 21262.,21262.
• Parties: JONES v. STATE.
• Court: Texas Court of Criminal Appeals

147 S.W.2d 508

JONES v. STATE.

No. 21262.

Court of Criminal Appeals of Texas.

February 5, 1941.

Appeal from District Court, Grimes County; Max M. Rogers, Judge.

Alston Jones was convicted of cattle theft, and he appeals.

Reversed and remanded.

Bennett & Bennett, of Normangee, and Hughes & Monroe, of Dallas, for appellant.

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

BEAUCHAMP, Judge.

Appellant was convicted in the district court of Grimes County, Texas, for the offense of cattle theft and, upon an enhanced penalty allegation, given a sentence of ten years in the penitentiary, from which he appeals.

The first question for our consideration is the sufficiency of the evidence. The state relies for conviction principally on the testimony of Luther Sloan, a boy eleven years of age, and of Thomas Hall, who, it appears, testified as an accomplice witness. The evidence making him such is not clearly understood, but he was at the time serving a term in the penitentiary on a plea of guilty for cattle theft and the court charged the jury that there must be other evidence corroborating his.

J. Marcus Smith testified to the ownership of seven calves, one of which being the calf alleged to have been stolen by appellant. It disappeared from his pasture on September 14, 1939. Luther Sloan, who was living on the place with his mother who was occupying the house with Thomas Hall and his mother, said that about the middle of July he had been fishing and on his way back saw appellant and a negro with a reddish brown calf tied down. Near it was a truck. He did not see them put it in the truck, take it away or do anything else. Upon reaching his home he told Thomas Hall about this occurrence. The boy testified positively that this was in the month of July. Mr. Smith saw his calf at a later date and places its disappearance as September 14. Some time during the month of September appellant approached Thomas Hall in the town of Huntsville and asked him to engage himself with appellant in disposing of some stolen cattle. He says I got one from Marcus Smith's pasture and butchered it. He told the witness Hall that he could get more cattle than he could dispose of. What followed and what connection Hall had with it is not revealed, but this testimony by Hall and that of Luther Sloan constitute the state's case.

We find no evidence which will corroborate the testimony of Hall to any degree. Had the evidence given by Luther Sloan placed the date at a time consistent with the disappearance of the calf and the statement made to Hall by appellant, it might, under some circumstance, be considered as corroborating evidence. The time element is not the only weakness in it as the record appears before us, but it does make it an impossibility.

We recognize the chances for error in dates and the possibility that Mr. Smith might have been mistaken as to the time his calf disappeared, as well as the fact that Luther Sloan could have been mistaken as to the time he saw the things take place which he testified about, but evidence is evidence and this court is without power to change it in order to make it consistent, particularly in the nature of the issue before us. If an issue gets in the way of a proven fact it may become possible to excuse it or explain it away, but that is quite different to the problem with which the state is confronted in the instant case. Here we are called upon to rebuild it so as to construct something which the evidence does not do. We are unable to so view the testimony.

Under the court's charge and in view of the case as it is before us, we think the jury did not have sufficient corroborating testimony to support the witness Thomas Hall and for this the judgment of the trial court will be reversed and remanded.

A question of importance in this case which we think must be decided arises on enhancement of the penalty.

Appellant had been convicted of a similar offense and served a term in the penitentiary. Subsequently the Governor granted him a full pardon. An allegation is found in the indictment setting out the former conviction and, upon proof of such former final conviction for a similar offense, appellant was given the highest penalty for cattle theft.

It is presented that because of the full pardon granted to him by the Governor, the state cannot now utilize that conviction for the purpose of enhancing his penalty in the present case. That this court has so held by a majority opinion in Scrivnor v. State, 113 Tex.Cr.R. 194, 20 S.W.2d 416, must be conceded. The very question was definitely decided in favor of appellant's contention in that case.

In view of the wording of our statute and in view of the decisions of our courts in this and in other states, as well as of the Supreme Court of the United States, we feel that the question is before us to be passed on and that we must do so in the light of the authorities and reasoning, even those referred to in the Scrivnor case, and that in so doing we are at liberty to follow the Scrivnor case or refuse to do so.

Blackstone has discussed the question and, of course, from the standpoint of the English Government and the relationship which the King bore to the decisions of the courts, at the time he wrote not taking into account a government like ours with three distinct and separate branches, the legislative, the executive and the judicial. The King had the power, upon appeal to him, to set aside the orders of the court. He alone could do so for the courts had no power over their final judgments. The executive in our form of government has no such power. He can pardon, but, "as the very essence of a pardon is forgiveness or remission of penalty, a pardon implies guilt; it does not obliterate the fact of the commission of the crime and the conviction therefor; it does not wash out the moral stain. As has been tersely said, `it involves forgiveness and not forgetfulness.'" 46 C.J. 1193; United States v. Swift, D.C., 186 F. 1002; State v. Hazzard, 139 Wash. 487, 247 P. 957, 47 A.L. R. 538; Sipanek v. State, 100 Tex.Cr.R. 489, 272 S.W. 141.

In United States v. Swift, supra, it is said at page 1016 of 186 F.: "Amnesty or pardon obliterates the offense * * * to such extent that for all legal purposes the one-time offender is to be relieved in the future from all its results; but it does not obliterate the acts themselves. * * * it does not close the judicial eye to the fact that once he had done the acts which constituted the offense."

In State v. Edelstein, 146 Wash. 221, 262 P. 622, at page 630, it is said that the weight of authority is against appellant's contention.

While earlier editions of Bishop on Criminal Law may be quoted as it was in the Scrivnor case in favor of that opinion, the Ninth Edition, par. 963, subdivision 4, says: "A person who has received clemency but instead of reforming persists in his evil ways certainly should not as to a subsequent offense be treated better than if the pardon had been denied. Accordingly the Kentucky court has held that such a pardon does not relieve him from any penal consequences resulting from his subsequent offenses, and this reasoning has been adopted by the United States Supreme Court."

We may concur in a statement that Mr. Bishop himself was more learned than those responsible for the revision of his work. We must also consider that they had additional authorities, and if and when they chose to write differently, we may well consider that they had good authority for doing so. They had what Mr. Bishop himself had said, and they had the opinions of learned judges of all the courts of the land who, no doubt, had thoroughly considered the view taken in the early work as well as the changing conditions and purposes under and for which pardons are now being granted. If the Supreme Court of the United States and the other courts have departed...