*1 is аffirmed. Opinion approved by the Court. Raymond Fairris
Bethel 33,614. October Rehearing Motion for Overruled November Judge, Rehearing. MORRISON, dissented on Motion fоr (Counsel John O’Dowd,Houston, W. on rehear- ing only). Attorney, Dally, Briscoe, Frank District Carl E. F. Jon Hughes, Attorney, N. Assistants District and Leon Douglas, Attorney, Austin, State’s for the state. Judge. McDonald, guilty by jury was robbery by charged assault. The indictment an habitual being alleged
criminal, it that before the commission of the in- robbery by stant priоr assault, burglary offenses of assault. In addition finding appellant guilty of the instant or jury rejected appellant’s plea of not and further found prеviously assault, been convicted of offense of like character and of the same nature. The provided by imprisonment penitentiary, law is life jury’s which was assessed the court after the find- ing guilt on both counts of the indictment. p.m., The evidence reflects that at about 10:15 September 15, accompanied by Marvin William *2 Joy Scales, Dale in returned to house at 808 Main Hall’s West Houston, County, they Harris Texas. A short time after had the compаnion, holding guns, entered the appellant house and his stepped out though appellant from behind a door. Even and his companion wearing stockings were women’s and handkerchiefs faces, appellant positively by across their was identified both Hall forcing and Miss Scales. After Hаll and Miss Scales to floor, lie appellant companion down the and his tied their securely they hands behind their Then backs. took them to an upstairs where, perior longer bedroom for a of an than hour appellant beat, tortured, companion and his and burned them cigarettes with in they an effort to make them tell where be- money. Hall concealing large pair lieved a was of sum had already approximatеly taken from Hall’s Hall coat. told $250 appellant money gift that his shop was at his located on the Old Spanish Trail in employee, and told him that аlso an Shirley Dunn, only key gift was the one who had shop. a to the Appellant Shirley then forced Hall to call Dunn and have her bring key Shortly thereafter, Shirley the to Hall’s house. Dunn boy and Joy her friend at arrived Hall’s residence. Dale Scales room, had couple been untied and the she admittеd into the and they immediately by appellant companion. tied the and his room, After a conference in appellant another the and his com- panion appellant’s companion decided would take the key go gift money. shop companion and to the to obtain the appellant stayed guard prisoners. left and the four When get glass Hall, want into the kitchen to a of appellant water tied, leаped through hands with his a head-first window living in and room ran down the street. then ran companion appellant shortly from the house. of came baсk learning upon happened, thereafter and what had fled from also companion and scene. his were arrested later positively by Hall, Joy police lineup in and were identified a Dale Shirley Scales, and Dunn. stocking handkerchief,
A woman’s found near Hall’s by day neighbor, police. house the next were delivered to the Upon inspection, stocking, human in hairs were discovered Toxicologist many Crawford had Chemist testifiеd characteristics, characteristics, and no dissimilar similar samples appellant. hair from the of head known automobile, Buick, bearing рlate A license white purchased PY time before short appellant, police officers a short distance seen occurred, shortly seen house after incident and was Hall’s away high speed. at a drive rate testimony Through Appellant’s defense was that of alibi. Margaret Dаvis, attemp- prostitute, common he admitted evening ted to the offense show that he was Dallas on girl Margaret occurred. picked up Dаvis testified that she another Dallas, appellant him to where Houston and took registered at the Town House Motel. Baird, Dallas, Ross N. testified that he saw 15, 1960, to him September and talked Dallas concerning employment at a later date. *3 testify did not in his own behalf. amply of- prove primary evidence is sufficient to fense of assault.
Because of the variance in the date appearing judgment the first of conviction of and that prior burglary, prove that offense of the state was unable to particular offense. prove con- amply
The state had beеn did as of the assault victed alleged in the indictment. to jury rejected the defense advanced him offense and offense prior alleged as-
sault. ap- exception. The no bills of
The record contains formal charge, no re- pellant objections the court’s made to charges presented. quested excеption appear in statement informal bills
Several discussion, all them are facts, require none merit. without no brief.
Appellant’s counsel filed Finding deeming the evidence abun- no reversible error and dantly verdict, support is af- sufficient firmed. rehearing motion
ON APPELLANT’S WOODLEY, Presiding Judge. fatally the indictment cоntends that defective support
and will not an enhancement of under Art. quotes majority opinion P.C. He cites and rehearing Rep. in Granado v. 168 Tеx. 329 S.W. Cr. 868:
“It has now called to our attention that the indictment allege para- before us fails to forth offense set graph 4 a like or offense one of the same nature as the charged. repeatedly This held Court has that such anis essential order sustain con- viction under legation Art. Ann. P.C. The аl- Vernon’s omitted substance,
is one of and its omission is fatal.” fallacy The case quoted before us demonstrates the holding.
Art, provides. “If P.C. it be shown on the trial of a *4 felony capitаl less than that the been defendant has before con- offense, nature, victed of the same or one of the same such subsequent or other second conviction shall be the highest which is affixed to the such commission of offenses in ordinary cases.” alleged indictment herein the offеnse of felony
assault, a capital. less than prior alleged conviction to enhance the offense; robbery by assault, felony. for a like prior As law offense in the matter conviction was “the same or one of same nature” as the offense for appellant was tried and which convicted. State, made to
Reference is the writer’s dissent Granado v. supra, cited, concurring opinion in and cases there аnd to his Gibbs v. 626. S.W. prior
Had the indictment further robbery like character assault was for an offense of him, charged against to-wit the same nature as by assault, required to sus- proof have been no additional would contrary have could tain such evidence produced. its agree overrule reluctant We the court should be wrong, clearly prior holding However, is decisions. when relying upon position of the court should not cast itself previous justify its errors to another. overruled, State, supra, quoted holding v. is in Granado rehearing. appellant’s is motion for FOR REHEARING
ON MOTION MORRISON, Judge (dissenting). State, supra majority v. writing for the Granado
In holding supported (1959), I ten authorities cited My brother, who Granado and dissented in the Court. today who “clearly majority, says Granado writes for the authority supports again I wrong.” call attention holding respectfully dissent. Granado Abundio Garza 33,964. November