Smith v. State
| Decision Date | 14 October 1936 |
| Docket Number | No. 18366.,18366. |
| Citation | 99 S.W.2d 937 |
| Parties | SMITH v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Polk County; W. B. Browder, Judge.
Jettie Smith was convicted of the offense of theft of a hog, constituting a felonious offense of like nature of which he had theretofore been convicted, and he appeals.
Judgment affirmed.
Adams & McAlister, of Nacogdoches, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The appellant was convicted of the offense of theft of a hog, constituting a felonious offense of like nature of which he had theretofore been convicted, and his punishment was assessed at confinement in the state penitentiary for a term of four years, the highest penalty prescribed by law for said offense.
Appellant's first contention is that the court erred in declining to sustain his motion to quash that part of the indictment charging former convictions of similar offenses with a view of enhancing the punishment. He contends that there is no averment as to the time, place, or the court in which the former convictions were had; that the indictment is insufficient in that it fails to allege that the offenses of which he was formerly convicted were less than capital, and cites us to the case of Helsley v. State (Tex.Cr.App.) 80 S.W.(2d) 962. In that case the indictment just uses the word "felony" without stating that it was one carrying a penalty less than capital; neither did it specify the offense, but in this case the indictment charges that he had been theretofore convicted of cattle theft which is a felony less than capital. It is alleged in the indictment that on the 3d day of February, 1932, and the 19th day of December, 1922, the defendant was convicted in said court of similar offenses, to wit, theft of cattle. It is obvious that the time of the former convictions are definitely charged and the words "in said court" have reference to the court mentioned in the formal part of the indictment, as no court other than the district court of Polk county is stated anywhere in the indictment. Hence the words "in said court" refer to the court theretofore mentioned.
Appellant's next contention is that the evidence is insufficient to warrant and sustain his conviction. The uncontradicted testimony shows that on or about the 29th day of January, 1935, appellant appeared at a slaughterhouse in Beaumont with fourteen hogs in a truck which he offered for sale. A constable and a deputy sheriff noticed that the ears of the hogs had been cut off recently and were still bleeding. They arrested the appellant, took charge of the hogs, and later turned the hogs and appellant over to the sheriff of Tyler county, who notified the people living near the county line of Polk and Tyler county that he had in his possession some fourteen hogs. Mr. Fuller, who inspected the hogs, identified them as his property. He testified that they were taken from his possession without his consent. Appellant did not testify or offer any testimony except a pardon for his conviction of theft of cattle in the year 1922, He did, however, through his attorneys, admit that he was the same person who was on the 3d day of February, 1932, convicted in the district court of Polk county of the offense of theft of cattle. We think the evidence sufficient to sustain the conviction.
Appellant in due time objected to paragraph 3 of the court's charge on the ground that it was a charge on the weight of the evidence; that the former convictions should not have been submitted to the jury as it could only serve to prejudice the jury against him. The charge not only required the jury to find beyond a reasonable doubt that defendant was guilty of theft of the hogs as charged in the indictment, but in addition they were required to find that he had been theretofore in 1932 convicted in the district court of Polk county of the offense of theft of cattle.
Appellant's objection to the court's charge on the ground that it failed to instruct the jury with reference to the punishment which they might impose upon him in case they found him guilty is deemed to be without merit. Appellant's former conviction of theft of cattle in 1932 was not only proven by the State, but was also admitted by him; and the jury found him guilty of theft of the hog as charged in the indictment and also found that he had theretofore been convicted of theft of cattle, but fixed no punishment. Upon the verdict being returned by the jury, the court entered judgment assessing the punishment for the theft of the hog at confinement in the state penitentiary for a term of four years, being the highest punishment prescribed by article 62, P.C.1925, upon a second conviction for a like or similar offense. The jury could not have assessed his punishment at a less or longer period of time. Hence there was no error in the court's failure to submit the question of punishment to the jury. See Gerard v. State, 91 Tex.Cr.R. 374, ...
To continue reading
Request your trial
-
Ware v. State, 23769.
...amount of punishment, the statute itself fixing the maximum penalty provided therefor in the event of a conviction. See Smith v. State, 131 Tex.Cr.R. 472, 99 S.W.2d 937; Gerard v. State, 91 Tex.Cr.R. 374, 238 S.W. There are bills of exception to certain argument to the jury by the State's a......
-
Crume v. State, 29404
...conclusion, see Palmer v. State, 128 Tex.Cr.R. 293, 81 S.W.2d 76; Darden v. State, 156 Tex.Cr.R. 527, 244 S.W.2d 231; Smith v. State, 131 Tex.Cr.R. 472, 99 S.W.2d 937; Branch's P.C., p. No statement of facts upon the merits of the case accompanies the record. No reversible error appearing, ......