*1 Donald, Jr. F. v. State B. 28,882. June No. Rehearing Overruled. Motion for State’s 30, 1957. October Percy Houston, Foreman, Jones, Corpus Jr., E. Luther Christi, appellant. for Burris, Attorney, Alice, Sidney
Sam P. District Chandler General, Austin, Ratliff, Attorney and Sam C. Wal- Assistants Barber, Attorney, Marcos, Triesch, lace T. H. A. District San Attorney, Douglas, County Braunfels, and Leon New State’s Austin, Attorney, the state. for
DICE, Judge.
Appellant separately tried and convicted conspiracy felony punishment assessed and his commit years. penitentiary a term of five at confinement Judicial District the 79th The indictment was November, Upon day County 4th Duval on the Court changed Hays County and motion, own venue court’s district court of was transferred thereafter cause had from which County and conviction were where trial Comal brings appeal. disposition facts In of the case recitation of the view of our unnecessary. *2 charges counts, each which The indictment contains two of alleges conspiracy with the substantive offense of day the the offense was committed on or about 1st of September, A.D. 1951.
Appellant presented exceptions the numerous Among presented which were the court overruled. those was following: “(b) appears the the of each it from face prosecution count charged against the that a therein of for the offense by lapse of the defendant is time.” barred fixing specifically In the of a statute absence limitation period conspiracy may pre- within which an indictment for sented, 180, provisions C.C.P., of Art. Ann. are Vernon’s applicable provide; any felony which “An other presented years within three from the commission * * offense, afterward; except murder, and not C.C.P., prescribes requisites
Art. Vernon’s Ann. of requires an indictment and in subdivision No. 6 that “The presentment mentioned must some date anterior indictment and not so remote of is barred limitation.” offense
From the appears of the indictment it in- that the dictment was more than three after the date the offense was to have been committed.
In 23 Texas Jur. Sec. it stated: “Whenever the subject offense limitation indictment or information must show it period was committed within the limita- tion.” Under the decisions of if date shows by limitation, indictment, the offense to be barred informa- tion, complaint alleging P.C., so is bad. 1 Branch’s Ann. 2nd Ed., 456, 456; State, App. 149; Blake Sec. v. 3 Texas Reed v. State, 865; State, 520; Harwell 13 S.W. v. Bradford S.W. v. State, Rep. 424, 119; Herron S.W. 150 Texas Dixon Cr.
161 Texas Cr. argues support The state the indictment that the crime charged continuing conspiracy offense, therein is that each pursuance conspiracy overt act done tolls the statute acts proof limitation and that com- since the showed overt charged period mitted within the limitation cases shown to have been limitation. Numerous including jurisdictions other are federal decisions cited upon by relied the state. passing upon sufficiency In of the indictment does necessary the sub- become to determine the whether provisions conspiracy state stantive offense of in this P.C., continuing 1622-1626, of Arts. Ann. is a offense. Vernon’s charged conspiracy The date it is entered into beyond is allege and the indictment does not performance any act overt in furtherance of occurring conspiracy period of limitation. within the *3 jurisdictions conspiracy is In those the crime held where of continuing allege a the commission to be offense the failure period anof overt act within the of limitation would render the States, indictment insufficient. See Pinkerton et v. United al proof 145 F. Nor would that overt acts were committed 252. sufficiency period the as of within of limitation suffice an allegations proof by indictment rather than the is measured its State, offered. 66 145 Mealer v. Texas Cr. S.W. argues support of The state further prosecution not limitation statute barred because provisions of tolled 2 and 3 Art. subdivisions C.C.P., 183, by reason Vernon’s Ann. offense, charging appellant
indictment by with 16, 1954, grand County July and jury there- of Duval on 28, after dismissed the court March on urged tolling by the state as the statute of These matters not available sustain limitation are alleged. they were not subject page 630, on of indict-
In 23 Sec. Texas Jur. stated: the rule is ment information anticipate negative defenses is not bound to or “The state pleading on its part if the shows face the accused but limitations, facts prosecution is the statute of that the barred the statute.” which avoid should be sound and should be followed think the rule stated is We
255 mandatory keeping provisions and is in with the of subdivision 396, supra, requires 6 of Art. time mentioned in presentment some date anterior to its so remote that of the offense limi tation and also with the rule that the burden well-established is on the state show that the offense was committed within required plead limitation and the accused Ed., Ann. a defense. 1 Branch’s P.C. Sec. 661, and cases there cited. rule has also Such been announced Drum, jurisdictions. and followed in other v. 217 See State ; (Mo. Sup., 1919) Commonwealth, 23 Combs v. 84 S.W. Ky. McGree, (1905); People Sup., (Cal. v. 36 2dP.
1934) ; Hollingsworth
(Ga.
;
App., 1909)
v.
Opinion approved by the Court.
WOODLEY, Judge, dissenting. herein, grand The indictment jury a of Duval County 4, 1955, alleges George Parr, November B. D. C. Chapa, Donald, (appellant herein), B. F. Jr. A. Givens Parr and persons grand jury unknown to the conspiracy entered into a agreed together and apply unlawfully take, fraudulently and mis- belonging money convert to their own in use $1000 Independent to County. Benavides of School District Duval conspiracy The was to have been entered into on or September 1, about applicable The statute limitations of to the offense here
charged C.C.P., provides is Art. 180 that an indictment of “within three from commission be offense.” (as 1941)
Art. 183 amended in reads: V.A.C.C.P. during time “1. The which the accused absent computed period State shall not be of limitation. during indictment, in- “2. an The formation, complaint period of computed in or shall not be limitation. herein, ‘during pendency,’ The term means
“3. used indictment, beginning day of time in- with formation, complaint juris- competent or in is filed court a ending day is, by an order diction with the such accusation having thereof, jurisdiction trial court determined any invalid for reason.” indictment motion herein was returned while state’s rehearing Adame v. pending until was in this court and was against prior named
March that a indictment the same others, allegations, defendants with like “an order having jurisdiction trial court determined to thereof any could invalid for reason.” circumstances the state Under charged only persons previously have had that the been (not had indicted for same offense of a been determined invalid trial court order occurred). any yet for that had not other against appellant finally cases reached the Both district court court County distinguished judge where the of that Comal dismissing the order entered the State, supra.
holding this Adame v. present judge presided trial indictment. later at the ma- question as the soundness of the would be no There fatally face de- jority its view state, fact if, was in the offense the laws fective by limitation. *5 having indictment, Looking the alone to Art. 180 V.A.C.C.P. years offense than three after date the presented been more committed, was invalid. to have been agrees, provides an But, Art. V.A.C.C.P. as C.C.P., general exception rule reflected Art. 396 to determining charged, if committed in whether offense during time indictment, is “the the date in the barred computed.” pendency of an indictment shall not be legal controlling it es- presented is: “Is here allege bring is sential that the facts a case which prima sta- under a within a facie barred statute limitations tolling tutory exception statute in certain circumstances?” Jurisprudence authority 27 American state- question, diversity opinion ment that some there is a this holding others, among courts such while essential courts, opposite them Federal take the view. predecessors,
There is no case decided or its holding which has been cited or which I have to find been able allege that is essential that as the indictment the facts state, the defendant’s absence from or tolling C.C.P., be- limitation under Art. 183 its fore after amendment. early dealing tolling
One case is with found of limitation under what is now 1 of Art. Section 183 V.A.C.C.P. case, was a
Whitaker C.A. murder for which offense an any time. The in- at against September dictment Whitaker having the homicide been committed some six before. immediately killing There was evidence to show after the county, Whitaker left the and after that was from the absent state state Missouri until after the in- some time negligent dictment was returned. The misdemeanor offense of charge jurors homicide was submitted in the court’s and the they guilty were if instructed that found Whitaker of that of- they him, acquit fense would as that offense was limi- tation. Citing provision present of Art. Section 183 V.A.C.
C.P., during person effect which a accused of an computed absent from the state shall not be limitation, appeals ques- the court said negligent tion of whether homicide was barred jury, should been have submitted and that the court’s assuming instruction, barred, it was was error and weight of the evidence. *6 258 allegation that effect in the indictment The absence of reversing the convic- appeals prevent
did not court of de- account the take into trial failed to tion because the (not alleged) tolled fact fendant’s absence from the state which lesser included offense. applicable the statute distinguished by the fact case The Whitaker quash the indictment. there was no motion to prior this court con- only decision of There is one and one struing Hill v. That case 2 and of Art. 183 C.C.P. Sections 3 appel- cited 171 Texas Cr. majority has contention which lant another defense distinguished. sustained, and which cannot was was after Art. C.C.P. The Hill case decided soon tolling 2 and amended the addition Sections had found during pendency prior been of a invalid. pen- rape the death Hill had and assessed been convicted alty, Supreme had aside and the of the United set Court States the conviction of racial discrimination selection 369; Texas, grand (Hill Hill jury. 400; Sup. 1159; 1559.) Ed. 316 U.S. 86 L. Ct.
Thereafter, year pro- within one of limitation but legislature rape, for amended Art. 183 vided the offense by adding 2 and C.C.P. Sections against (more
A Hill than second indictment was returned year offense) one alleged (as after date of on October prior rape invalid) held did the named female December case, in the Hill second indictment like the indictment us, showing
before contained no indict- and, except had indictment, ment prior been returned by lapse the offense was of time. Art. 178 C.C.P. affirming opinion penalty in the Hill case death
Th questions the second indictment is devoted to whether the first the amendment of statute after conviction had been available, tolled set aside was whether quash An examination of the motion to indict- the statute. legal any conten- ment in that case doubt but that removes tion here sustained this court and the view before majority rejected. case the instant *7 grounds respective quoted Here are the motions from attacking the indictments:
(Appellant co-indictees, Donald and his in their motion to quash) “(b) appears it each count because from the face of prosecution of the indictment that a herein for charged against lapse by the defendant is barred of time.” (Hill’s upon indictment) “(2) attack the second appears prosecution from the face that a indictment by the the lapse offense is barred of time.” apparent against It is if the indictment Hill was suffi- against attack, cient present the identical indictment is not fatally defective. clearly Let it majority understood that of the mem- court, all, uphold bers of this appellant’s if not conten- do not prior alleged, tion that the properly indictment if insufficient to toll limitation under Art. Secs. and V.A.C.C.P. majority, court, The if not all of the of this hold members conspiracy by is not in fact barred limitation and prosecution may alleging upon properly be had an pendency facts to the indictment as well as upon which this was had. legal question way before us decided either would do rights accused, no violence place an undue burden change position by state. But the after the Hill case was decided is unfair to the state.
The offense was not barred limitation under Art. 180 legislature provided exception because the C.C.P. has in Art. whereby 183 C.C.P. calendar time is not the sole method which the to be determined during pendency “shall an indictment not be com- puted.” knowledge theory judicial is relevant where the sta-
tute of limitation tolled indictment. state is relied application It from the has no where absence State, supra. limitation, toll as Whitaker Roquemore 111 Texas Cr. would opinion, the trial court majority holds
cited knowledge of the judicial the records of the contents of have including indictments. Roquemore seized The statement v. State “* * * indictment, he majority is: there was a mere but where knowledge identity parties of the judicial would have or the transaction.” quoted application for there
The condition has no here no “mere indictment.” Both the *8 guilty appellant was found
the indictment under which belonging alleged misapply conspiracy funds to the same County on or Independent of Duval Benavides District School September about allege Chapa D. and would
Both indictments that C. was be district; that B. F. tax assessor and said school collector of Donald, Texas was and would to be cashier of the Jr. continue Alice; conspiracy B. F. Don- State Bank of and under the that belonging ald, misapply to the Jr. would and convert funds coming possession of was district into said bank which school depository Independent School District for the Benavides funds. knowledge judicial of the
If the trial could take surely he fact that there could take notice of the Donald, of the Texas was one B. F. who was cashier but Jr. (the depository District) for the State Bank Alice School at the time mentioned in the indictment! by a how defendant
Just could benefited proof indisputable jury fact that or three before the two grand juries, one, just for the same had indicted him apparent. Certainly he trial was offense for which is on is not proof previ- th that he has been not an element of ordinarily ously deemed harmful to the defendant. indicted pointed evidence It out in this connection no was upon the trial which would not have admissible been admitted upon previous a trial under the indictment. charge
It should further noted that herein court’s required jury, made no of a mention indictment and convict, conspiracy was order to find that en- tered into co-con- and one or more of spirators, years return of and also that within three before conspiracy party the indictment some act done contemplation scope parties was within the of the and the conspirators. conspiracy, which act was intended charged conspiracy The offense indictment was pursuance agreement and the acts done were but evi- prove into, conspiracy dence to was entered renewed finding and continued. There was evidence sustain less years than three before indictment herein was returned more than funds In- drawn from “Benavides $1700 dependent Freer Local School District Maintenance” false purporting supplies pur- vouchers which were chased, as well numerous similar thefts dur- of school funds ing 1949 to 1953 inclusive. respectfully
I dissent.
ON MOTION FOR REHEARING MORRISON, Judge. Presiding
Upon study, further we find that the here impression. not one of first In Hickman v. 44 Texas *9 587, Presiding Judge Davidson, Crim. speak 72 S.W. ing 1903, reversing for the in in conviction, the said: charges appellant, “The indictment that day on the 2d July, forged following 1902 the instrument: “ No______________ Falls, Texas, July 2, ‘Wichita “ ‘The Falls, Panhandle National Bank of Wichita “ Seven________Dollars ‘Pay R. to H. Smith or Bearer $7.00.
“ ‘Boney Mclntire.’ explanation “The indictment contains neither averments nor allegations. quash inuendo based, Motion to first, upon ground that the instrument shows that itself offense statute grand limitations when * * points well taken. jury; second, are believe both *. We July 2, 1892. The purports on instrument have been executed to 1902, 29, jury on preferred by grand October indictment was Prose- purported something execution. over 10 after years.” in 10 forgery under our statute cution is barred in interesting annotation found It to note from an placing as A.L.R., 153, is cited page that Hickman case weight authority holds great Texas in line with allege in the accusation the state it incumbent the statute of limitations. the matters which toll Rep. later, Texas Cr. Forty years in Anderson 339, said: this court “ * * * * charged prosecuted for If had been forgery appeared it had offense of face of ten more than was committed the offense indictment, then, doubt, years prior no to the return ** quash *.” court would have sustained the m-otion to See, Dinklage also, Texas Cr. this court where said: “ * * * * an found It therefore follows that burg- accomplice 1937, charging October
lary August 1933, late, and shows committed in comes too its statute limitation.” be barred face Minnesota, Tupa, 260 Supreme State v. N.W. Court reversing plead had conviction where the accused guilty its the of- because the indictment on face showed by the and failed to con- fense was barred statute of limitations allegations showing run, posed had tain that the statute pertinent question: seen, liability, imposed upon as we have could not be
“Civil where, here, clearly the face of the es- defendant accusation put by a rest statute cause has been valid tablishes fair, logical, repose. hold that ac- reasonable to one Is treated with less consideration than cused of crime should be *10 escape means avenue from a con- one who uses or liability obligation, perhaps for a tort where tractual or from act?” (cid:127)the involved criminal tort itself California, People McGee, Supreme v. Court plead 373, the accused had P. 2d a conviction where reversed holdings: guilty gave following for its reasons “ * * * (referring our to a statute statute similar opinion) V.A.C.C.P., original Article set in the is forth jurisdictional, and that an indictment or information which prosecution shows limitations on its face that is barred public point may fails raised to state offense. The therefore be any time, judgment. at before or after
“* ** cases, state, through legislature, In criminal its prosecute period has declared that will not crimes after the run, power proceed has and hence has limited the of the courts People Hoffman, Bilboa, supra; in the matter. See v. v. State Idaho, 92, P. 222 P. It that where the follows pleading of the state shows of the statute of run, nothing limitations has to take the case out statute, example, of the that the defendant has been absent state, power proceed gone.” from the case It is insisted that Hill 157 Texas Cr. 880, supports position the state’s the indictment nothing is sufficient. There is opinion on the face of in that case contention, which sustains such and the same is therefore contrary authoritative. If a conclusion to the statute and original authorities opinion may cited in this and the independent drawn from examination of the record in that case, then controlling. what we have here said is to be Remaining properly disposed convinced that we of this mat- originally, ter rehearing the state’s motion for is overruled.
WOODLEY, Judge, dissenting, on State’s Motion For Re- hearing : holding Hickman majority quote, from which the was before us when appeal being original considered on submission. While cited, original opinion
it was not quoted the rule which Jurisprudence Texas derived the Hickman case: “The anticipate negative State part bound to defenses on the accused, pleading but if the shows its face that limitations, is barred the statute of facts should which avoid the Texas statute.” 23 Jur. Sec. p. *11 though quali- by majority upon
This rule is relied Jurisprudence, fying of Texas rule found in the same Section 30 rehearing, strongly urged is the state on Vol. us ignored. “Presumptions and MATTERS OF WHICH of law BE NEED NOT AVERRED.” JUDICIAL NOTICE IS TAKEN Jur., pp. 23 Texas Sec. 630-631. no statute toll- when we had Hickman case was decided The missing
ing prior a of indictment. limitation reason allegation explain repugnance between was one that would it was (1892) and date of the instrument allegation showing that limitation forged in It was not an 1902. clearly show that the was tolled one which would but begin did to run in not recognized by merely applied the rule The Hickman case State, Hodge v.
this court as as the recent cases of late year, Rep. this and decided Texas Cr. S.W. Dixon v. contention, agree, this rule I is that
The state’s with which under application has no where tolled Sections limitation is V.A.C.C.P., held in Hill v. and 3 of Art. 183 court reason this 146 Texas 171 judicially 2d 880. One Cr. prior indict- true is the court knew had ment tolled limitation. rehearing or whether
pendency indictment which had been against court, disposed in the same which judicial pending while indictment herein was the same change venue, district had been transferred both judicial was a trial take knowl- matter of which the court could edge. so, majority, If the rule relied regard necessary facts in subsequent indictment. in the indictment be rule The state attention to another from Texas Juris- directs regard: prudence pertinent in this “In criminal which is cases proceedings judge judicial the records, takes of his own notice judgments entered in his court. He and of a fact witness or the should take notice defendant felony previously a in his has been convicted complaint against pending witness for in the same court of charged, which the defendant the same offense with against another case contents an indictment defendant defendant it, a former conviction of whether before charged, which he is same offense with was for the appealed Texas has been from.” 17 and that a former conviction *12 204-5, Jur. Sec. majority authority further cited answer to
One holding judicial judge notice re- the trial could take being garding identity appellant’s the defendant in the indictment. Armstrong State,
In 120 Texas 2d Cr. 46 S.W. knowledge corpus proceeding we held that if in a habeas judge “Weatherby” came to the which he knew that indictment was the same man called as venireman in trial, the case on he could take notice of that fact and act it. Judge Fuchs, judge, shows, changed transcript the trial recog- venue in the case and entered into appearance nizance before him for his in another court of the judicial Armstrong The appear district. case would holding Judge authority correctly judi- Fuchs took (which cial notice that the defendant in that case he later dismissed) was ap- the defendant in the case from which this peal prosecuted. is quite It is true question presented that the appeal on this impression. not one of first attempted As I demonstrate, have Rep. 333, Hill v. 171 S.W. rape held that the offense of was not barred limita-
tion V.A.C.C.P., though reason Art. the indictment 16, 1942, was returned on October rape “the offense of alleged to County, Texas, have been committed in Dallas on the day December, opinion 1st 1940.” The in the Hill case reveals following: appeal rape. The was from a death sentence for The case had been before this court on a appeal (Hill former 369). Texas Supreme Cr. The Court of the United reversed the Subsequently States case. Hill was “in fully the manner reindicted hereinafter stated and the trial had on the quash second indictment. A motion to the second timely (I indictment was filed.” have directed attention to the original papers ground fact in the case reveal that one ground of this motion was the identical now sustained majority.) committed in rape to have “The offense of been Texas, day December, County, 1940.” With- Dallas on 1st days Hill indicted. in a few amending provide act so as to Art.. 183 C.C.P. during com- indictment should defining “dur-
puted the term of limitation ing July pendency” became effective first was reversed under the conviction 1, 1942. Supreme of the United on June Court States eight 16, 1942, approximately year months On October alleged, rape the offense of the indict- after the commission of death the sec- Hill was tried and sentenced to ment ond time was returned. *13 Judge speaking through Beauchamp, said:
The the commission of the offense “The amount of between indictment, period added to the from June and the first (date conviction) of the first to October of reversal (the presented) indictment was is much less date the second quoted year. the terms of the amendment above than one Under th,e V.A.C.C.P.) period (Sections of limita- 2 and of Art. 183 3 prosecution.” aas bar to tion would not be available showing ground for not resort record One need (identical quash the indictment with that before the motion (which appeal) examine the indictment contains nor on this us regarding pendency prior indictment). of the no upon by now the rule relied opinion itself shows of the application indictment and majority no has V.A.C.C.P., (Art. as amended. Sections Art. C.C.P. 3.) and applied us is not what the rule as tto before whether, judge indictment, judicially since the trial but first during- pendency there knew tolled, subsequent second indict- which allege showing fatally which fails to facts defective ment is prior indictment. fallacy majority be view that I believe What weight equal accorded and is not au- C.C.P. Art. 183 given to Art. 180 C.C.P. thority as is equal dignity it, As I see these statutes are should though legislature together had amended construed (and similarly Art. 180 all other limitation statutes C.C.P. code) V.A.C.C.P., Arts. insofar as so that here together applicable, read: should any felony may An indictment for other within years three from the commission of offense and not after- (except pre- wards, murder, for an any time) computing three-year-period sented at but such beginning shall there be excluded the of time with the day competent jurisdic- an indictment was filed in a court of ending day is, tion and a trial court with the such accusation order having jurisdiction thereof, determined to be any invalid for reason. Construing applicable together giving equal statutes weight agree majority holding each, I cannot with the fatally allege the indictment is defective failure to facts showing that three calendar time had not barred the provisions of one of them. Englert Robert v. State 29,210. No. October *14 appellant. Antonio, Black,
Allan A. San Attorney, Green, Jr., Hubert W. Criminal District Key K. Attorney, Hoffman, Jr., Assistant Criminal District San An- Attorney, tonio, Douglas, Leon Austin, State’s for the state. Judge. BELCHER,