Snodgrass v. State

• Decision Date: 14 February 1912
• Citation: 150 S.W. 162
• Parties: SNODGRASS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 162

150 S.W. 162

SNODGRASS v. STATE.

Court of Criminal Appeals of Texas.

February 14, 1912.

On Motion for Rehearing, October 16, 1912.

Appeal from District Court, Erath County; W. J. Oxford, Judge.

Lonnie Snodgrass was convicted of horse stealing, and appeals. Affirmed.

B. E. Cook, of Stephenville, for appellant. C. F. Greenwood, of Dallas, and C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was charged with the theft of a horse from O. T. Cline. When tried, he was convicted, and his punishment assessed at two years' confinement in the penitentiary.

There are but two grounds presented in the motion for a new trial; the first being that the evidence is insufficient to support the verdict, and the other is that the court erred in not submitting to the jury, at the request of defendant, the issue as to whether defendant had ever before been convicted of a felony, defendant having requested that he do so under the provisions of the law as passed by the Thirty-Second Legislature, being chapter 44. The court indorsed on said application refused, because he saw no equities for defendant if he is guilty. Appellant excepted to the action of the court in refusing to submit that issue to the jury.

1. As to the first ground, there is no question but what the horse of Mr. Cline was stolen on the night of the 16th or morning of the 17th of May. Mr. Peak testified: That he was in the livery business at Morgan. That in the month of May, not remembering the date of the month, but on Thursday or Friday of the week, "a boy came to his stable leading the horse stolen from Mr. Cline, and offered to sell the horse to him, and that he recognized the defendant as the same boy that came to his stable with the horse. That he had seen the boy in jail when he was a witness before the grand jury, and recognized him out of two or three others in the jail as the same boy." J. A. Crawford testified he lived at Morgan, and saw a man leading the horse through an alley to the livery stable, and talked to him; that he noticed closely because of his proposal to sell the horse so cheap, saying: "I did not see the boy any more after that until I came here as a witness before the grand jury at this term of the court, when I saw him in the jail, and there I took him to be the same party I saw at Peak's barn with the horses. There could be two men just alike, of course. I looked at him closely in the jail. What attracted my attention to him was the way he acted and maneuvered around and the price he put on the horses, and he was nervous, and seemed to want to go away, and wanted to know too much about where Mr. Peak had gone. To the best of my knowledge, the defendant is the same man I saw at Peak's stable in Morgan with the horses, as described. I have no doubt in my own mind; but a man could be mistaken. In my own mind I have no doubt about it." J. B. White testified that he was constable of the Morgan precinct, and, when Mr. Peak came to him, he went and talked to defendant, saying as well as he remembered it was on Thursday about May 18th when he saw the boy with the horses in Morgan, saying the young man who had the horses looked like defendant. On cross-examination he said he went to the jail for the purpose of identifying the man. There were two other men in jail with defendant, but neither of them resembled the Morgan man, but he thought defendant did resemble him. As to whether he could be mistaken in his identity of the defendant, he said he would not be positive about it. When the marshal of Stephenville went to Morgan to see about the horses, these three witnesses described the young man who had the horses, and from this description the marshal arrested defendant. The horse was stolen at Stephenville, and carried to Morgan, a distance of about 50 miles. Defendant offered testimony to show that he was at home in Stephenville on the 15th, 16th, and 17th of May, and went from home to Dublin on the night of the 17th, and two witnesses testify that he spent Thursday the 18th in Dublin.

The issue was thus squarely drawn as to whether defendant was the person who stole the horse, the testimony offered by him proving a complete alibi, if the jury had believed it. But under appropriate charges the jury found against him. The testimony offered by the state, as shown above, would justify such finding, and under our judicial system, the jury being the judges of the credibility of the witnesses and the weight to be given their testimony, we never feel inclined to disturb their verdict on an issue of fact where there is evidence to support their finding. Mr. Peak positively identifies him as the man in possession of the stolen horse, and the other witnesses who saw the man at Morgan with the horse support him.

2. As to the other question, that the court erred in refusing to submit to the jury the question as to whether or not defendant had theretofore been convicted of a felony, their finding to be the basis of an application to the trial judge to suspend the sentence under the provisions of chapter 44, Acts 32d Leg., presents a question of some difficulty. Said act reads:

"Section 1. That when there is a conviction of any felony in any district court of this state, except murder, rape, perjury, burglary, and burglary of a private residence, robbery, arson, seduction, bigamy, and abortion, the court may suspend sentence upon application made therefor in writing by the defendant when the punishment assessed by the jury shall not exceed five years confinement in the penitentiary; provided, that in no case shall sentence be suspended except when the proof shall show and the jury shall find in their verdict that the defendant has never before been convicted of a felony in this state or in any other jurisdiction.

"Sec. 2. The court shall submit the question as to whether the defendant has ever before been convicted of a felony, only upon request in writing by the defendant, and when the issue is raised by the evidence.

"Sec. 3. When sentence is suspended at the request of the defendant no appeal shall lie from the judgment of conviction.

"Sec. 4. Upon application for suspension of sentence, the court may hear evidence as to the reputation of the defendant as a law-abiding citizen, and as to whether the defendant has ever been before convicted of a felony, and upon any other matter that may in its judgment enable it to arrive at a proper conclusion; and the suspension of the sentence, or the refusal to do so, shall be wholly within the discretion of the trial court, and the exercise of such discretion shall not be subject to review in any other court; provided that in no case shall sentence be suspended unless the jury recommend it in their verdict.

"Sec. 5. When sentence is suspended, the judgment of the court on that subject shall be that sentence on the judgment of conviction shall be suspended during the good behavior of the defendant. By the term `good behavior' is meant that the defendant shall not be convicted of any felony during the time of such suspension or any misdemeanor that involves moral turpitude that the court who granted such suspension may deem not good behavior.

"Sec. 6. Upon the final conviction of the defendant of any other felony or misdemeanor as provided in section 5 of this act, pending the suspension of sentence, the court shall cause proper process to issue for the arrest of the defendant, if he is not then in the custody of said court, and upon the execution of the capias, and during a term of the court, shall pronounce sentence upon the original judgment of conviction, and shall cumulate the punishment of the first with the punishment in any subsequent conviction or convictions.

"Sec. 7. In any case of suspended sentence, upon the expiration of double the time assessed as punishment by the jury, the defendant may apply to the court, in term time, to have the judgment of conviction set aside; and if it shall appear to the court, upon the hearing of such application, that the defendant has not been convicted of any other felony, and that there is not then pending against him any charge of felony, the court shall enter an order reciting the facts, and that such judgment of conviction be set aside and annulled. After the setting aside of any judgment of conviction as herein provided for, the fact of such conviction shall not be shown or inquired into in any court for any purpose, except in such cases where the defendant has again been indicted for a felony, and in such event such prior conviction may be shown in case the defendant invokes the benefit of this act.

"Sec. 8. When sentence is suspended, the defendant shall be released upon his own recognizance, in such sum as may be fixed by the court."

If the law is valid, it appears upon the written request of defendant, when the issue is raised by the evidence, the court shall submit to them the question of whether or not the defendant has theretofore been convicted of a felony. This part of the law seems to be mandatory on the judge, and if the jury find that this is the first offense, and the punishment is for less than five years, it then becomes discretionary with the court as to whether or not he will suspend the sentence. The questions arise, Has the Legislature the authority to confer upon district judges the authority to suspend sentence after a person has been legally convicted of crime? and, Has the Legislature the authority to confer on district judges the power to extend immunity from punishment under the conditions named in the act? This law not only gives to district judges discretionary power to suspend the sentence of a person after he has been legally convicted of an offense, but also after lapse of time, upon a showing that he has been guilty of no other offense, to set aside the judgment of conviction, thus in terms conferring on them the power to grant pardons to persons convicted of crime. Our Constitution...