Long v. State

• Decision Date: 18 May 1960
• Docket Number: No. 31934,31934
• Citation: 339 S.W.2d 215,170 Tex.Crim. 177
• Parties: Charles Herbert LONG, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 215

339 S.W.2d 215

170 Tex.Crim. 177

Charles Herbert LONG, Appellant, v. STATE of Texas, Appellee.

No. 31934.

Court of Criminal Appeals of Texas.

May 18, 1960.

Rehearing Denied Oct. 5, 1960.

[170 TEXCRIM 177] Wardlaw, Cochran & Brown, by George E. Cochran, Fort Worth, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is under Art. 489c, Vernon's Ann.P.C. for the unlawful possession of a pistol by a person who had been previously convicted of burglary; the punishment, 2 years in the penitentiary.

The indictment alleged that appellant, on or about the first [170 TEXCRIM 178] day of February, 1959, had in his possession away from the premises upon which he then resided, a pistol, he having been convicted on April 7, 1954, in cause No. 1949 in the 70th Judicial Court of Midland County, Texas, of burglary and served a term in the penitentiary under such sentence.

Briefly the state's testimony showns that on the night of January 31, 1959, Airmen Royce Robinson and Joe Ogletree, who were stationed at Carswell Air Force base near the city of Fort Worth, in company with their wives went to the Stardust Lounge located on the outskirts of the city. After they arrived and before they had gone inside, four men came out of the lounge and got in an automobile parked nearby. As they got in the automobile a door was slammed against Ogletree's car and upon complaint from him the four men proceeded to get out of their automobile and engage the two airmen in a fight. In the first which ensued, one of the men, whom the two airmen and their wives positively identified as the appellant, produced a pistol with which he proceeded to strike the two airmen on the head during the fight. The pistol in appellant's hand was described by the witnesses as one with a short barrel. It was shown that during the fight two shots were fired and that one of the appellant's companions also produced and exhibited a pistol. After the fighting ceased the four men left and later in the night the appellant and two of his companions Harry Kirk and Gene Hicks were arrested by the officers at the White Sands Supper Club. In a search of the automobile in which appellant and his companions were traveling, the officers found two snub nose pistols under the front seat which were introduced in evidence as State's Exhibits Nos. 7 and 8. The pistols were loaded and each contained an empty cartridge and were shown to have been recently fired. Both Airman Ogletree and his wife testified that the pistol which they observed in appellant's hand on the night in question resembled the pistol introduced in evidence as State's Exhibit No. 7.

In making proof of the appellant's prior alleged conviction for burglary the state introduced in evidence certified copies of the indictment, judgment and sentence in cause No. 1949, styled The State of Texas v. Charles Herbert Long on the docket of the 70th Judicial District[170 TEXCRIM 179] Court of Midland County, Texas, which showed that on April 7, 1954, the defendant named therein was convicted on burglary and sentenced to 5 years in the penitentiary. Also introduced were certain authenticated prison records of Charles Herbert Long, No. 129729, including photographs and fingerprints of the subject and copies of the judgment and sentence in cause No. 1949 on the docket of the 70th Judicial District Court of Midland County, Texas. Appellant was identified by Officer Gordon Smith as the person so convicted in the cause. It was also shown by the testimony of Deputy Sheriff Bob Doolen, identification officer for Tarrant County, that a comparison of appellant's known fingerprints with those in the prison records showed that they were the same.

Appellant did not testify but called as a witness his companion, Travis Kirk, who testified that it was he who produced the pistols during the fight and not the appellant. Kirk testified positively that appellant did not possess a gun on the night in question and his testimony was corroborated by that of Gene Hicks who was also called as a witness by appellant.

The jury chose to resolve the conflict in the testimony against the appellant and we find the evidence sufficient to sustain their verdict.

[2, 3] Appellant insists that the court erred in admitting the two pistols in evidence because it was not shown that they were ever in his possession. The only objection made by appellant to the introduction of the pistols in evidence was that they were obtained in a search made outside of his presence. The fact that the pistols were obtained in a search outside of appellant's presence would not render them inadmissible. The record shows that the pistols were obtained in a search of the automobile in which appellant and his companions were traveling. The automobile was shown to belong to appellant's companion Kirk. Appellant was in no position to complain of the search of the automobile which belonged to Kirk. Orosco v. State, 164 Tex.Cr.R. 257, 298 S.W.2d 134. One of the pistols was identified by the witness, Janice Ogletree, as like the pistol in appellant's possession on the night in question and the other as like the pistol in possession of his companion Kirk. Under the record the court did not err in admitting the two pistols in evidence.

Appellant's complaint to the court's action in admitting testimony showing that the two pistols in question had been taken in a burglary is without merit as no objection was made by appellant to such testimony.

Appellant's remaining contention is that the court erred in refusing to grant a mistrial when state's counsel asked the witness, Tony Slaughter, if he were present when Travis Kirk and appellant 'were taken into custody by the court in the presence of some of the state's witnesses'.

[170 TEXCRIM 180] Appellant's objection to the question after the witness had answered in the negative was by the court sustained and the jury instructed not to consider the same. The question propounded was not so prejudicial that its effect upon the jury could not be removed by the court's instruction and in view of the instruction and the witnesses negative answer thereto the court's refusal to grant a mistrial does not present error.

The judgment is affirmed.

Opinion approved by the Court.

DAVIDSON, Judge.

I dissent for the reasons stated in the concurring opinion in Garcia v. State, Tex.Cr.App., 335 S.W.2d 381.

On Appellant's Motion for Rehearing

The majority of the court remain convinced that the appeal was properly disposed of on original submission and overrule appellant's motion for rehearing without written opinion.

In the dissenting portion of my opinion in Garcia v. State, Tex.Cr.App., 335 S.W.2d 381 (adopted as my dissenting opinion in the instant case on original submission), I pointed out the necessity for both allegation and proof of a conviction after the convict's discharge from the penitentiary, in order to constitute a violation of the statute under which this conviction was had (Art. 489c, Vernon's Ann.P.C.).

In addition to what I said in the Garcia case, I further dissent here, because Art. 489c, Vernon's Ann.P.C., is unconstitutional and void in that it is violative of our Texas Constitution.

Art. 1, Sec. 21, of our Constitution, Vernon's Ann.St., reads as follows:

'Corruption of blood; forfeiture of estate; descent in case of suicide

'No conviction shall work corruption of blood, or forfeiture of estate, and the estates of those who destroy their own lives shall descend or vest as in case of natural death.'

[170 TEXCRIM 181] The same provisions are contained in Sec. 41(d) of the Probate Code, Vernon's Ann.Civ.St., and in Art. 16, Vernon's Ann.C.C.P.

I am impressed by the editorial comment found under the article in Vol. 1, Sec. 21, Vernon's Ann.Texas Constitution, wherein it is said:

'By this broad provision of the Texas Constitution, corruption of blood or forfeiture of estate upon conviction or suicide is prohibited, and it is so explicit as to have precluded controversy in the courts on the subject.'

Only two cases have been before the courts throughout the history of this state upon that subject. These are: Davis v. Laning, 85 Tex. 39, 19 S.W. 846, 18 L.R.A. 82, and American National Insurance Co. v. Coates, 112 Tex. 267, 246 S.W. 356, both civil cases: one by the Supreme Court and the other by the Commission to the Supreme Court. In each of those cases the constitutional provision was applied, and forfeiture of the convict's estate was expressly prohibited because of his conviction. In neither of those cases was a statute of the legislature involved.

So far as I have been able to ascertain, this is the first time the legislature, by statute and in open defiance of the Constitution of this state, has forfeited one's estate because he had been convicted of an offense.

An analysis of Art. 489c reflects that the statute is subject, upon its face, to the constitutional limitation.

Art. 489c, Vernon's Ann.P.C., relates and has reference only to the possession of a firearm capable of being concealed upon the person and includes all firearms having a barrel of less than twelve (12) inches in length. A pistol is expressly included by name. The statute is not a measure regulating the wearing or carrying of a pistol, as prohibited by other statutes of this state (Arts. 483-485, Vernon's Ann.P.C.).

Here, the prhibited act--and therefore the unlawful act--is merely the possession by the convict of a pistol away from the premises upon which he lives.

In criminal law, possession is constituted by the care, control, and custody of the property, proof of which constitutes and establishes ownership thereof in one's...