Whittle v. State
| Decision Date | 22 March 1944 |
| Docket Number | No. 22785.,22785. |
| Citation | 179 S.W.2d 569 |
| Parties | WHITTLE v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Houston County; Sam Holland, Judge.
Clay Whittle was convicted of murder, and he appeals.
Affirmed.
Nat Patton, Jr., and J. F. Mangum, both of Crockett, for appellant.
Ernest S. Goens, State's Atty., of Austin, for the State.
Appellant was charged with the murder of T. E. Kelley in Houston County on August 2, 1943. Upon his trial he was given the death penalty, and he now appeals.
Both the appellant and the deceased were convicts, confined at the State's Eastham Farm in Houston County, and practically all the witnesses were also convicts. It was alleged in the indictment, and proven, that prior to the date alleged as the commission of this offense appellant had been previously convicted of crimes that carried as a punishment the alternate punishment of death,—that is, that appellant had been convicted in Ector County, Texas, on the 28th day of March, 1940, of an offense to which the penalty of death was and is affixed as an alternate punishment, to-wit, the offense of robbery; and again it was alleged that appellant had been convicted on the 9th day of March, 1940, in Midland County, Texas, of a similar offense, and carrying a similar alternate penalty; and again it was further alleged that on the 5th day of March, 1940, in Winkler County, Texas, appellant had been convicted of a similar offense, to which there was affixed a similar alternate penalty.
Art. 64, Penal Code, provides as follows:
"A person convicted a second time of any offense to which the penalty of death is affixed as an alternate punishment shall not receive on such second conviction a less punishment than imprisonment for life in the penitentiary."
By virtue of this statute the trial court instructed the jury that in the event they found the appellant guilty, and that he had been previously convicted of an offense that carried the alternate punishment of death, then they should assess the punishment herein at death or confinement in the penitentiary for life.
Appellant filed a motion to quash the indictment, claiming that the pleading of the three previous convictions for robbery violated the provisions of our State Constitution, Art. 1, Section 14, Vernon's Ann.St., wherein it prohibits any person being put twice in jeopardy of life or liberty, it being contended that appellant was again being herein tried for the offenses for which he had been theretofore convicted in Ector, Midland and Winkler Counties in the year 1940.
We have heretofore held in Kinney v. State, 45 Tex.Cr.R. 500, 78 S.W. 225, 226, 79 S.W. 570, relative to a similar statute concerning a misdemeanor, that the enhancement of a punishment because of previous convictions of a similar offense was a constitutional statute and did not place defendant twice in jeopardy for the same offense. This Kinney case, supra, was again written upon in the motion for a rehearing, 79 S.W. 570, 571, in which it was said:
Again the Supreme Court, when it had jurisdiction of criminal matters, held in the case of Long v. State, 36 Tex. 6, quoting from Lord Campbell, C. J., in an English Case, that:
Also see Williams v. State, 109 Tex.Cr.R. 450, 5 S.W. 2d 514.
The trial court was correct in overruling such motion.
Again appellant moved to quash the indictment because, as he alleges, the same showed upon its face that the offense charged did not come within the provisions of Art. 64, Penal Code, and therefore the allegation of three prior convictions should not be included therein.
Appellant's contention hereunder being that this is not the second conviction with death as an alternate punishment, but is the fourth such conviction, and therefore this statute does not apply herein. We are not in accord with such contention. We think such statute means the second, or any subsequent conviction carrying with it the alternate punishment of death, and not merely the second conviction alone. The cumulative nature of such punishment doubtless arises because of the incorrigibility of the offender, and the inability to cause him to answer obediently to the laws, and the more reason exists for such an application of the statute to a stubborn offender, and increases with the increased number of offenses of the character set forth in the statute. To hold with appellant's contention would result in rewarding one who committed more than two such offenses for his failure to heed the admonition of the law as to repetition of offenses.
We think the phrase "second conviction" as herein used would not be rendered meaningless if there were also present a third, a fourth, or other subsequent offenses. This motion to quash was correctly overruled.
While looking over the authorities under Art. 64, P.C., supra, our attention was directed to the case of Jennings v. State, 135 Tex.Cr.R. 670, 122 S.W.2d 639, in which this court erroneously quoted Art. 64, P. C., as requiring the trial judge to assess the penalty under an indictment charging the commission of an ordinary felony less than capital and a previous conviction of such a felony. This decision gave as its reason for the assessment of a life penalty Art. 64, P.C. The citation to the statute should have been Art. 62, Penal Code, which article does make the penalty in such second or subsequent conviction of a felony less than capital a fixed one as the highest affixed to the offense, which the court himself assessed upon a finding of guilt by the jury, and to the extent of the quotation of Art. 64, P.C., same should read Art. 62, P.C.
Appellant also excepted to the trial court's failure to require the State to elect upon which of two counts in the indictment it relied upon. There were two counts set forth in the indictment, the first count alleging the homicide to have been committed by the use of a knife, the second count alleging the act to have been committed with some sharp instrument, the nature and description of which was unknown to the grand jurors. The trial court in his charge submitted to the jury the allegations contained in the first count alone of the indictment, that is the use of a knife, and we think such act was tantamount to an election of the use of the first count alone by the court.
In appellant's bill of exceptions No. 11 he objects to the introduction of the prior convictions in the district courts of Ector, Midland and Winkler Counties on various grounds, one of such grounds being because the allegations in the indictment sets forth the offense of which appellant had been previously convicted as that of robbery, and does not follow such offense with the phrase "with firearms," and there being two classes of robbery, one being robbery by assault, with no alternative punishment of death, and robbery with firearms, bearing the alternate punishment of death, it is appellant's claim that not only should such portion of the indictment be quashed, but also that such prior convictions are not admissible for the purpose of determining the punishment, and same is a variance between the allegation and the proof. We are not without a precedent in the matters upon which this complaint is based. In the case of Palmer v. State, 128 Tex.Cr.R. 293, 81 S.W.2d 76, 78, the accused was charged with the murder of Major Crowson, a guard on this same Eastham farm. The indictment therein was the subject of attack on the same grounds as the present attack on the indictment in this case. The Palmer indictment is set forth in the opinion, and we find it to be in full accord with the present indictment herein. In the portion of the indictment relative to the punishment in the case at bar it is alleged "that the said Clay Whittle was duly and legally convicted in said last-named court of an offense of which the penalty of death was and is affixed as an alternate punishment, to-wit, the offense of robbery," etc. The corresponding paragraph in the Palmer case, supra, reads that "the said Joe Palmer was duly and legally convicted in said last named court of an offense to which the penalty of death was and is affixed as an alternate...
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Wright v. State
...Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697); or on the basis of a prior capital felony under Article 64, V.A.P.C. (see Whittle v. State, 179 S.W.2d 569). It also has been held that if enhancement is sought under the Narcotic Drug Act, Article 725b, Sec. 23, V.A.P.C., the indictment ......
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Prescott v. State
...Given an ambiguity, the complained of response should be narrowly construed. The State cites Whittle v. State, 147 Tex.Cr.R. 227, 179 S.W.2d 569, 573 (Tex.Cr.App.1944) (On Motion for Rehearing) for the proposition that this Court has said that an ambiguity in a defendant's statement about h......
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Prescott v. State
...theory to the instant case would require us to engage in an after-the-fact intrusion into the minds of the jury. In Whittle v. State, 179 S.W.2d 569 (Tex.Crim.App.1944), the defendant testified that he had only been convicted of four offenses and the State was permitted to correct defendant......