Watson v. State

• Citation: 237 S.W. 298
• Decision Date: 18 January 1922
• Docket Number: (No. 6490.)
• Parties: WATSON v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

237 S.W. 298

WATSON v. STATE.

(No. 6490.)

Court of Criminal Appeals of Texas.

January 18, 1922.

Appeal from District Court, Falls County; Prentice Oltorf, Judge.

Hunt Watson was convicted of burglary, and he appeals. Affirmed.

Nat Llewellyn, of Marlin, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Conviction is for burglary. Punishment two years in the penitentiary.

The indictment charging accused with the offense of burglary was returned into court on June 21, 1920. On October 4, 1920, appellant filed his affidavit, setting up that he was born December 4, 1903, and was therefore under 17 years of age, and asking that the felony prosecution be dismissed. The record shows no action by the court on the motion at that time. On January 31, 1921, appellant filed another affidavit, referring to the former one filed by him, alleging in the latter:

"That the county attorney postponed said cause and refused to try same, and did it with the deliberate, purpose of waiting until after the defendant became 17 years of age; that defendant was at all times ready, willing, and anxious to be tried on said motion."

No order appears to have been made on the second affidavit. When the case was called for trial, on April 4, 1921, appellant filed another affidavit, alleging that he was born November 4, 1903, and again charging that the officers purposely continued the case until after he became 17 in order to deprive him of his rights under the juvenile law. Article 1195, C. C. P. Testimony was heard by the court at this time, and is brought forward in a bill of exceptions, covering 25 pages of the transcript, and consists almost entirely of questions and answers. The bill in this form cannot be considered in its entirety. See article 744, C. C. P.; article 2059, R. S.; Vernon's C. C. P. p. 537, note 21; Jetty v. State (No. 6407) 235 S. W. 589, opinion November 30, 1921; Parker v. State (No. 6447) 238 S. W. 943, opinion December 7, 1921; Hornsby v. State, 237 S. W. 940, and Johnson v. State, 239 S. W. ___ (both opinions December 14, 1921; McDaniel v. State (No. 6443) 237 S. W. 292, opinion December 1, 1921.

If we consider the fragmentary part of the bill not subject to the objection pointed out, the evidence does not sustain the contention, but indicates that during a part of the time appellant was in jail in other counties. The hearing on the motion could not have proceeded in his absence. While appellant was in jail in Falls county the court appears to have been engaged in the trial of some murder cases. The provision of the Constitution (article 1, § 10) providing "In all criminal prosecutions, the accused shall have a speedy public trial," was intended to prevent the government from oppressing the citizen by holding criminal prosecutions suspended over him for an indefinite time, and to prevent delays in the customary administration of justice by imposing upon the judicial tribunals an obligation to proceed with reasonable dispatch in the trial of criminal accusations. Ex parte Thurman, 26 Tex. 710, 84 Am. Dec. 598; Harris' Constitution of Texas, page 78. If such unreasonable delays as suggested above were attempted, an accused would not be without remedy. But it does not occur to us such attempt was made in the instant case. Two affidavits were filed, the first giving accused's birth as December 4, 1903, the second as November 4, 1903. If the first was correct as to date, then only two months elapsed from the date of filing until he became 17. If the second gave the correct date, then only one month elapsed from the time the first was filed until his seventeenth birthday. The juvenile law was designed, not that one should escape punishment for crime, but to prevent one under 17 at the time of trial from going to the penitentiary. McLaren v. State, 85 Tex. Cr. 31, 209 S. W. 669. If at the time of trial he has passed the age limit the purpose of the law, as written, has been accomplished. We would be unwilling to give our approval to a course of delay for the sole purpose of depriving an accused of his privilege under the juvenile law, yet where the facts show him to have been more than 17 when tried, we would hesitate to give our unqualified assent to the broad proposition that the prosecution should be dismissed if continuance was brought about by the state until such time as accused became more than 17 years of age.

When the state offered Charley Chambers as a witness, in order to show his incompetency appellant introduced three judgments of conviction against him; two from Dallas county, both at the January term of court in 1910; one from Ellis county on April 11, 1910, at the February term of court. Punishment in each of these convictions was 2 years in the penitentiary, all being cumulative. To show his competency had been restored the state introduced the following pardon:

"Proclamation by the Governor of the State of Texas.

"To All to Whom These Presents shall Come:

"Whereas, at the January term, A. D. 1910, in the district court of Dallas county, state of Texas, Charley Chambers was convicted, charged with the offense of burglary and his punishment assessed at two years' confinement in the state penitentiary; and

"Whereas, at said term of said court in said Dallas county, state of Texas, the said Charley Chambers was convicted on a second charge of burglary and his punishment assessed at two years' confinement in the state penitentiary; and

"Whereas, at the February term of the district court of Ellis county, state of Texas, the said Charley Chambers was convicted of the offense of burglary and his punishment assessed at two years' confinement in the state penitentiary; and

"Whereas, the said Charley Chambers having served his full term of sentence in the state penitentiary in all three cases as aforesaid, was discharged therefrom on the 12th day of April, 1916, for the reason that the county attorney, Homer Jennings, of Falls county, Texas, and the county attorney, G. O. Crisp of Kaufman county, Texas, each advised that the said Charley Chambers was wanted in the respective counties mentioned to testify in several cases now pending in the courts of these counties, and further that the said Charley Chambers is now wanted to testify in a criminal case now pending in Falls county, state of Texas, wherein he is a material witness in said cause:

"Now, therefore, I. Pat M. Neff, Governor of Texas, do, by virtue of the authority vested in me by the Constitution and Laws of this state, hereby, for the reasons specified, now on file in the office of the Secretary of State, grant the said Charley Chambers a full pardon and restore him to full citizenship and the right of suffrage and the right to testify in court.

"Proclamation by the Governor of the State of Texas.

"To All to Whom These Presents shall Come:

"In testimony whereof, I have hereunto signed my name and caused the seal of state to be hereon impressed, at the city of Austin, this the 5th day of April, A. D. 1921.

                  "[L. S.] Pat M. Neff, Governor of Texas
                "By the Governor
                     "S. L. Staple, Secretary of State."
                

Objection was urged to the witness testifying because the pardon failed to show that it covered the conviction in Ellis county, there being omission to state the year of conviction as 1910. Over objection, Chambers was permitted to swear on his voir dire examination that he was convicted only one time in Ellis county, and that this occurred in April, 1910. It is made manifest by the certificate of the clerk to this judgment of conviction in April that it occurred during the February term, 1910.

The case of Miller v. State, 46 Tex. Cr. R. 59, 79 S. W. 567, 3 Ann. Cas. 645, cited by appellant, does not, we think, support his proposition. The question there discussed is not like the one now before us. But in the case of Hunnicutt v. State, 18 Tex. App. 498, 51 Am. Rep. 330, the identical question was presented. The pardon there stated incorrectly the date of conviction. The pardon was admitted, and witness, over objection, was permitted to testify on his voir dire examination that he had never been convicted but the one time. Article 792, C. C. P. The action of the trial court was sustained. In Thompson v. United States, 202 Fed. 401, 120 C. C. A. 575, 47 L. R. A. (N. S.) 206, the question was raised that the pardon failed to identify the witness as the one to whom issued, and the witness was permitted to testify that he had received the pardon and accepted it, and this was held sufficient identification. Reference to the pardon shows its purpose was to restore the competency of the witness, and the record presents no error in the particulars complained of.

Objection was also urged to the introduction of the pardon because same had never been delivered to or accepted by the witness. Bill No. 3. The pardon had been sent direct to the county attorney who had received it on the morning of the trial. Chambers had never seen it, or had possession of it, and had nothing to do with securing it. When the objection was made the county attorney asked the witness if he accepted the pardon, and received an affirmative answer. The Hunnicutt Case, supra, is authority for the correctness of the court's action in holding the acceptance sufficient.

Charley Chambers, an accomplice, testified to a complete case, being to the effect that he, Watson, Gathright, and Glass burglarized the depot at Marlin on Friday night, the 28th of May, 1920, taking therefrom the safe, which they carried in an automobile some two miles from town, broke it open, and appropriated the money found. He testified to the movements of all the parties during the day before, at the time of, and after, the burglary until they reached Houston on Sunday morning, where they were arrested. We...