Ex Parte Herrod
- Reporters:
- , , ,
- Before:
- Beauchamp
*1 Appellant objected questions to the and answers on the ground unfair, prejudicial inflammatory, were and requested jury discharged, which do, jury refused tо timony but instruct not to the tes- consider any purpose, to which action of the court the de- excepted. fendant
It plea guilty will be noted thаt entered a testify. Therefore, did not objectional testimony was not affecting credibility any admissible witness, nor for legitimate realizing purpose other in the case. that it prejudicial, objection was inadmissible and sustained the jury any purpose. Ap- instructed the not to it consider pellаnt, contends, however, notwithstanding the court’s in- struction, testimony highly prejudicial was of such nature effectively the court could not have withdrawn the same jury. from the minds of the We think there is merit in his con- highest jury imposed penalty pre- tention inasmuch as the charged notwithstanding law for the offense the fact scribed pleaded guilty. Just to what extent this tes- timony highest punishment contributed to the infliction of the jury say. we are unable to here expressed, State, we refer to the cases of v. Ulmer 349; Taylor State, v. R. 210. said,
From what we have it follows remanded, the trial should be reversed and the cause it is sо ordered. Appeals of the examined Court of Criminal
NOVEMBER 24, Ex Parte Robert Herrod. 22669. Delivered October No. 1943. Rehearing Denied November *2 states case. Q. Youngblood, Dallas, G. appellant. of Gauldin, Dean Attorney Angelo Criminal District Pra- nio, Attorney, County, Assistant Criminal of Dallas of both Dallas, Spurgeon Bell, Attorney, Austin, E. the State.
DAVIDSON, Judge. Appellant jail, satisfying, confined in pay- in default of ment, pecuniary costs, against a him, by fine and a justice fined, judgment, ain misdemeanor case. con- While so court, he was carried before the where he was convicted of other misdemeanors and his assessed at days. immediately for 180 thereafter jail, to returned where he period remained confined for the time mentioned. expiration time, sought At the appellant of that custody by contending release from corpus, writ habeas that, by jail, judg- satisfied both ments. appeal denying is from order an prayed the relief remanding appellant of the sheriff until the justice remainder court fine fully and costs had been
satisfied. appellant If entitled to be be credited on the per
fine and costs with the day sum day $3.00 each provided by jail, P., as Art. C. C. he has more than hand, satisfied On the other if the time served after the rendition is to applied be then satisfied the and is not en- titled determination, then, whether or not
The issue for time served is to be satisfaction of both pivotal point at the ments. The time undergoing around the fact revolves then he was punishment assessed distinguishing appеars a court. material tice This fact feature. rendering P., provides
Art. C. C. pecuniary when conviction assessed, imprisoned fine is until the defendant shall be “discharged pro- “discharged provided law.” The assessed, pay law” means either to the fine and costs vided to authority lay an it out in or to have same remitted having having power. paid Appellant P. Art. C. C. remitted, costs, his con- the fine same not *3 circumstances, only jail was, alter- finement in under the such native. county authorized make its
Whether the court was judgment enter ment does not cumulative the court Moreover, matter, into no order was entered. the because such the it is the that first served contention judgment he satisfy before time the began serving judgment. The time fixed the the upon is the rendition the State’s contention thereunder, jail imprisonment judgment, began serving appellant’s in jail inasmuch as that assessed, whereas, specific punishment under the was the jail punish- in was not the the confinement tice court paying or but was a method ment affixed that court analyzing position, it satisfying this must be that not, by any part, appellant did act on his mind that in borne interfere judgment satisfying justice court with his when the jail. in confinement n рunish- to inflict further into him carried State resulting him, in sentence. upon ment ruling, contention, and the trial court’s supporting its As parte Williams, 1 upon Ex Tex. the case of 33 relies the State 171, 116, (2d) wherein we held one con- W. R. 109 S. Cr. misdemeanor, punishment pecun- at a with aof victed who, while confine- fine, iary cоuld, felony, of a convicted in ment satisfy required the mis- term words, time in In other confined punishment. demeanor
363 dis- in so as to penitentiary constitute cаse charge fine. The distinction between the the readily apparent. lies in distinction and this case Such in place was confined. Confinemеnt where the defendant jail. in penitentiary is not confinement Dockery, parte that the of Ex
The State also contends cases 293, 599, Stephens, 59 parte R. and Ex 38 Tex. Cr. S. W. 177, 819, These Tex. Cr. R. its contention. 127 W. S. imprisonment a fine are as- cases hold where term sessed as the service of imposed. of the fine cannot be as a satisfaction controlling* here. The fact fail to see wherein such rule is We entirely situation is different. The State’s contention cannot language Dockery case, sustained effect used imprison- contemplate that “The statute seems to (in enforced, pe- jail) ment shall be first and afterwards the the Re- cuniary discharged ways provided by fine some of Statutes,” because, case, supra, Stеphens lan- vised guage principle was held to be obiter dicta and not a correct of law. have reached the conclusion this is controlled case governed by parte the rule announced in the of Ex
Lawson, approved R. S. W. Whiteside, parte Ex (2d) S. W. parte Lawson, ín Ex pаrte Whiteside, as we said Ex “There serving a convict *4 brought before a state tried there and convicted of felony under the laws of passed this state. The ran sentence concurrently with convict, the federal sentence. The instead being placed in the state was returned to prison to federal serve the Upon federal sentence. his release prison from the federal taken and incarcer- penitentiary. question ated in the state The at issue was whether or not under such facts the convict was entitled to a credit upon the state sentence the time prison passage of the state sentence. The conclusion reached given upon was that credit should have been the state sentence in the the time served passage after the in the state sentence court.” presented The situation here analagous, еspecially in fact pointed view the we have heretofore out, when county court, he was in satis- fying and the court is reversed
is ordered оpinion Appeal‘s been examined Court Criminal rehearing. ON APPELLANT’S motion BEAUCHAMP, Judge. reasoning are not in presented accord with the rehearing original State’s motion for and feel that
clearly discusses the law ato determination question before us. It conclusion that a further presented disсussion of the authorities add motion could nothing original opinion and that are not called for proper in order to reach a deсision matter involved. light We have reconsidered the authori- to, referred ties and are of the the State’s motion rehearing overruled, accordingly should be which is done. (Red) John Jenkins v. The State. No. 22597. Delivered October 27, 1943.
Rehearing Denied November