Snow v. State

• Decision Date: 24 November 1937
• Docket Number: No. 19119.,19119.
• Citation: 114 S.W.2d 898
• Parties: SNOW v. STATE.
• Court: Texas Court of Criminal Appeals

114 S.W.2d 898

SNOW v. STATE.

No. 19119.

Court of Criminal Appeals of Texas.

November 24, 1937.

Rehearing Denied March 30, 1938.

Commissioners' Decision.

Appeal from District Court, Ellis County; Tom J. Ball, Judge.

G. D. Snow was convicted of burglary, and he appeals.

Affirmed.

L. D. Johnston and H. R. Stovall, both of Waxahachie, and Bennett & Bennett, of Normangee, for appellant.

F. G. Swanson, of Tyler, amicus curiae.

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

Dan Moody and Charles L. Black, both of Austin, amici curiae.

CHRISTIAN, Judge.

The offense is burglary; the punishment, confinement in the penitentiary for two years.

The place of business of the Gulf Refining Company in Ennis, Tex., was burglarized on the night of September 25, 1936, and twenty-two cases of lubricating oil taken therefrom and set on the platform just outside the building. The entrance was made by breaking a lock on the front door. Immediately after the house had been entered officers went to the scene and found an automobile nearby bearing license No. F—63311. Also there was a trailer attached to the car. Appellant came out of a cotton patch pulling up his trousers. He stated to the officers he had gone into the cotton patch to answer a call of nature. Further he said that he had gotten lost and had turned off the highway up the dirt road toward the burglarized building; that, in trying to turn his car around, he got stuck in the mud. One of the officers testified that when they approached the burglarized building some one came "running down the cotton rows from the door of the warehouse." This party was identified as being appellant. Appellant was arrested in Houston. A search of his automobile disclosed that he had a license plate in the car bearing No. 399-002. An effort had been made by some one to burglarize the place of business of the Gulf Refining Company two or three nights before. At that time an officer approached and some one fled in an automobile bearing license No. 399-002. Shortly after the burglary fingerprints were taken from the cases of lubricating oil found on the platform. After appellant was arrested his fingerprints were taken and they corresponded exactly with the prints taken from the cases of oil. Shortly after his arrest appellant made a written statement in which he said that he was not in Ennis on the occasion of the burglary. However, upon the trial appellant admitted that he was near the burglarized building at the time the officers approached. He denied, however, that he had entered the building and taken the lubricating oil.

We are unable to agree with appellant's contention that the evidence is insufficient. While fingerprints may not be conclusive as to the identity of an individual, as stated by this court in Davis v. State, 125 Tex.Cr.R. 6, 66 S.W.2d 343, in the present case note is to be taken of the additional circumstances proved by the State, and which we have hereinbefore set forth. In its entirety, we think the evidence is sufficient to meet the requirement of the law of circumstantial evidence.

There is no merit in appellant's contention that the court should have instructed the jury that the State relied solely upon circumstantial evidence. The court gave a correct and adequate charge on the subject of circumstantial evidence.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commissioner of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

HAWKINS, Judge.

In this motion for rehearing appellant seeks to raise and have this court determine the question of the eligibility of Judge Harry N. Graves to hold the office of judge of the Court of Criminal Appeals of Texas.

We know actually and judicially (a) that in consequence of the death of the late Judge O. S. Lattimore a vacancy occurred in the office of judge of this court; (b) that in discharging the duty imposed upon him by the Constitution, art. 5, § 4, the Governor appointed Judge Graves to fill the vacancy; (c) that Judge Graves holds a commission from the Governor evidencing his appointment to the office; (d) that he has taken the official oath and is now engaged in discharging the duties of said office; (e) that Judge Graves was a member of the House of Representatives of the Forty-Fifth Legislature of the State; (f) that the Legislature of which Judge Graves was a member passed a law, Vernon's Ann.Civ.St. art. 6819a, which raised the salaries of judges of the appellate courts, including the judges of the Court of Criminal Appeals; (g) that the term for which Judge Graves was elected to said Forty-Fifth Legislature does not expire until the 2d Tuesday in January, 1939; (h) that article 3, section 18, of the State Constitution, provides in part as follows: "No Senator or Representative shall, during the term for which he may be elected, be eligible to any civil office of profit under this State, which shall have been created, or the emoluments of which may have been increased during such term."

It is upon the provision of the Constitution last above quoted that appellant bases his contention that Judge Graves is ineligible to hold the office, the duties of which he is now discharging.

The importance of the matter presents a strong appeal for the expression of our views upon the merits of the question, but, if this court is without power to determine the eligibility of Judge Graves, any expression thereon would not amount to an adjudication of the question, and we have no disposition to attempt the exercise of a jurisdiction which we do not have. This same idea evidently prompted the statement from Judge Davidson found in Marta et al. v. State, 81 Tex.Cr.R. 135, 193 S.W. 323, 333. In that case appellant attempted in a motion for rehearing to raise a question on the right of Judge Harper to function as a judge of this court, the claim being that he had by his acts vacated the office. Judge Davidson dissented on affirmance of the judgment, but, regarding the attack, upon Judge Harper, said: "I believe from hurried review of the motion of appellants to disqualify Judge Harper from sitting in this motion for rehearing that as a member of this court I am not authorized to decide that matter. Any conclusion I might reach or decide I could not enforce by judicial order or mandate. This court as a court cannot try one of its members for breach of duty or supposed breach of duty."

It is certain that the present effort to raise the question of eligibility of Judge Graves by appellant in his motion for rehearing is a collateral and not a direct attack. The holding of the courts is quite uniform in all jurisdictions that such a question may not be raised collaterally. It is not necessary, however, to go beyond our own courts.

"It is settled law that the right of a judge to the office in which he functions may not be attacked collaterally." 25 Tex.Jur. 245; Lowe v. State, 83 Tex.Cr.R. 134, 201 S.W. 986; Marta v. State, 81 Tex.Cr.R. 135, 193 S.W. 323; Germany v. State, 109 Tex.Cr.R. 180, 3 S.W.2d 798, 800; Hamilton v. State, 40 Tex.Cr.R. 464, 51 S.W. 217; Ex parte Tracey, Tex.Cr.App., 93 S.W. 538; Hagler v. State, 116 Tex.Cr.R. 552, 31 S.W.2d 653; Bennett v. State, 78 Tex.Cr.R. 231, 181 S. W. 197; Ex parte Call, 2 Tex.App. 497, 500. In the case last cited, after reviewing many authorities, Judge White said: "It is a general rule that the title of an incumbent of a judicial office cannot be impeached collaterally and indirectly, and that, while he is in possession of the office, discharging its ordinary functions, his official acts are conclusive as to all persons interested. * * * The result from all the authorities seems to be that, in matters which concern the public, the officer's title to his office (he being in the exercise of its duties) cannot be questioned unless in a direct proceeding having for its object the contestation of his right to hold the office."

In Germany v. State, supra, quoting from Ex parte Tracey, supra, "The whole doctrine of de facto officer is founded upon policy and necessity, in order to protect the public and individuals,...