Stanley v. State

Decision Date24 June 1898
Citation46 S.W. 645
CourtTexas Court of Criminal Appeals

Appeal from district court, San Jacinto county; L. B. Hightower, Judge.

George Stanley was convicted of murder in the second degree, and he appeals. Affirmed.

Mann Trice, for the State.


Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 10 years; hence this appeal.

The record does not contain a statement of the facts. A bill of exceptions was reserved to the action of the court permitting Tom Fitze to testify against appellant. As the ground for this objection, it is stated that said Fitze was convicted during that term of the court in two cases, each being a felony; that these convictions occurred about eight days before he was permitted to testify against appellant, and no motion for a new trial had made in either case. The court states, in connection with this bill, and in explanation thereof, that the witness had not been sentenced in either case, and had not had counsel to defend him, and had himself asked the court to defer passing sentence upon him until he could secure the services of an attorney to file motions for new trial. This request was granted by the court. This action of the court was not erroneous. Article 27, Pen. Code, provides: "An accused person is termed a convict after final condemnation by the highest court of resort which, by law, has jurisdiction of his case, and to which he may have thought proper to appeal." It has been held that under this statute an accused person is not a convict until sentence has been passed upon and accepted by him, or, if he sees proper to prosecute an appeal from the sentence, he would not be a convict until the judgment against him should be affirmed. Until he becomes a convict in fact, either by accepting sentence, or the judgment against him has been affirmed, he would be a competent witness. See Arcia v. State, 26 Tex. App. 193, 9 S. W. 685; Woods v. State, 26 Tex. App. 490, 10 S. W. 108; Jones v. State, 32 Tex. Cr. R. 135, 22 S. W. 404; Evans v. State, 35 Tex. Cr. R. 485, 34 S. W. 285.

The other questions suggested for consideration pertain exclusively to the facts, and, as before stated, the evidence is not before us. We cannot, therefore, revise the questions. The judgment is affirmed.

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2 cases
  • Flournoy v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 21, 1900, and had declined to appeal his case, and was willing that the sentence of the law be then passed upon him. In Stanley v. State, 39 Tex. Cr. R. 482, 46 S. W. 645, we held that a witness is not disqualified because of conviction for felony until the sentence has been passed upon and a......
  • Gibbs v. State
    • United States
    • Texas Court of Criminal Appeals
    • June 24, 1898

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