Underwood v. State

• Decision Date: 19 October 1927
• Docket Number: (No. 10951.)
• Citation: 12 S.W.2d 206
• Parties: UNDERWOOD v. STATE.
• Court: Texas Court of Criminal Appeals

12 S.W.2d 206

UNDERWOOD v. STATE.

(No. 10951.)

Court of Criminal Appeals of Texas.

October 19, 1927.

Rehearing Granted December 19, 1928.

Appeal from District Court, Brazoria County; M. S. Munson, Judge.

Colley Underwood was convicted of murder, and he appeals. Reversed and remanded.

Scott Gaines and W. S. Sproles, both of Angleton (Edwin Moorhead, of Austin, of counsel), for appellant.

Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Del Rio, for the State.

LATTIMORE, J.

Conviction for murder; punishment, death.

Appellant plead guilty. Substantially the only contention is that the witnesses who testified against appellant upon this trial were convicts; that they were serving out their sentences in prison and had not been pardoned; and that they were incompetent to testify for that reason. Appellant admits that the alleged murder was committed on a prison farm, and he further admits that since the commission of this offense the state Legislature has passed a law (Acts 39th Leg. 1st Called Sess. c. 13) under which the testimony of convicts confined in the state penitentiary might be received in cases where such testimony became material and the alleged offense was committed in the penitentiary or upon one of the state farms. Appellant, however, contends that because such testimony was inadmissible at the time the alleged offense was committed, notwithstanding the law making such testimony admissible had become effective at the time of the trial, same was as to him an ex post facto law, and that the trial judge erred in admitting the testimony.

In Mrous v. State, 31 Tex. Cr. R. 597, 21 S. W. 764, 37 Am. St. Rep. 834, citing Hopt v. Utah, 110 U. S. 574, 4 S. Ct. 202, 28 L. Ed. 262, we held the admission of the testimony of a seduced female in a seduction case, not erroneous, over the objection that at the time the offense was committed, the injured female was incompetent as a witness — the statute rendering her competent having been enacted subsequent to the commission of such offense. The principle seems identical with that involved in the instant case. The doctrine is reaffirmed in James v. State, 72 Tex. Cr. R. 457, 163 S. W. 61. In volume 10, Note on U. S. Reports, we find the holding in the Hopt Case, supra, approved in Gibson v. Mississippi, 162 U. S. 590, 16 S. Ct. 904, 40 L. Ed. 1075; Thompson v. Missouri, 171 U. S. 384, 18 S. Ct. 922, 43 L. Ed. 204; State v. Ah Jim, 9 Mont. 173, 23 P. 76; People v. McDonald, 5 Wyo. 538, 42 P. 15, 29 L. R. A. 834. All of the complaint made by appellant's counsel, who were appointed by the court to defend this unfortunate man, seems based upon their objection to the testimony of the various convicts who were present at the time of the alleged homicide, the objections relating to the question above briefly discussed. We regard the matter as settled in this state adversely to the appellant's contention.

Finding no error in the record, the judgment will be affirmed. On Motion for Rehearing.

Appellant strongly urges in his motion for rehearing that the Legislature could not pass any law restoring competence as a witness to any person who had been theretofore finally convicted of a felony; and that the objection made by him to the admission of the testimony of those witnesses who were already convicts serving out their sentences when chapter 13, Acts First Called Session, 39th Legislature, was enacted, did not rest solely on the ground that said statute was retroactive, but also was based on the ground that the incompetence of such witnesses could only be removed by a pardon issued by the Governor, and that hence the cases cited in our original opinion, going no further than to hold against such objection on the ground that the law was not retroactive, were not controlling; also, that said chapter 13, supra, in so far as it attempts to restore competence to persons finally convicted of felonies before said law became effective, was ultra vires and of no force and effect.

In none of the cases cited in our original opinion did the question arise as to the lack of power in the Legislature to restore to any person the privilege of testifying as a witness, when such privilege had theretofore been lost to him by reason of final conviction of a felony. It is true that in Hopt v. Utah, 110 U. S. 574, 4 S. Ct. 202, 28 L. Ed. 262, the proffered witness had been convicted of an infamous crime prior to the passage of the statute making such persons competent, but examination of the opinion shows that the only objection made or considered in that case was that the act could not be held applicable because retroactive. Nothing in the opinion in that case, as far as it relates to what is here before us, goes beyond holding that an act relating merely to procedure is not retroactive.

The exact point now raised was exhaustively discussed in State v. Grant, 79 Mo. 113, 49 Am. Rep. 218, and came from a state having a Constitution much like ours, and was in a case where a statute existed at the time of the conviction of the witness which rendered him infamous and incompetent to testify, but which statute subsequently, and before such witness was offered, had been so amended as to attempt to remove such disabilities as to parties theretofore convicted. We quote from the decision in the Grant Case, supra:

"When the statutes annex certain disabilities, the loss of certain civil rights, to the conviction of a crime, and a conviction of that crime thereafter occurs, that thereupon by force and operation of the law and of the judgment of conviction the disabilities become welded to the...