Gage v. State
387 S.W.2d 679
Tex. Crim. App.
1964
Check Treatment

*1 829, Ann.C.C. pronounced. Vernon’s Art. P., State, Gossett 162 Tex.Cr.R. v. Tex.Cr., 59; State, v. S.W.2d Marrero 626, 302 R. 134. stated,

For the reasons Court- jurisdiction is without to entertain the appeal. appeal The is dismissed.

APPELLANT’S MOTION TO REINSTATE APPEAL BELCHER, Commissioner. appears

It supplemental from the tran- script pro- sentence this cause was upon nounced appeal while pending in this court. Until such as the mandate this court has been disposing received appeal, the trial court is author without ity pronounce sentence in cause. C.C.P.; Arts. 828, Le Bove v. 157, 172 342; Hughes

146 Tex.Cr.R. 160 Tex.Cr.R. 836. 267 S.W.2d The appeal motion to reinstate the is overruled.

Opinion approved Court.

No attorney appeal; of record Rich- Prigmore,

ard T. (on Brownfield motion to appeal), appellant.

reinstate GAGE, Jr., Appellant, Douglas, Atty., Austin,

Leon B. Jessie J.

for the State. Texas, Appellee. The STATE

McDONALD, Presiding Judge. No. 37079. possession The is offense a narcotic Appeals Court of Criminal of Texas. drug, marijuana; punishment, to-wit: Nov. years peniten- confinement state tiary. Rehearing 16, 1964. Denied Dec. record does not reflect imposed

sentence was requisite

A appeal sentence is ordi

nary felony appeal may cases and notice of given before or sentence either

'680 Gilmore testified that State’s witness approached appellant by

he asked who locating for a certain street address aid displayed large immediately and sum who money compensate and offered Gil- him more if he would drive to a colored part city. the way On man, pointed McDonald, another colored stop suggested at a standing and bus they locating his secure address. aid proceed- aid willing McDonald was and spot ed with to a section them colored pickup brought where Gilmore’s Appellant dur- momentarily halt. and left ing displayed a three absence McDonald game indicating card how monte Gilmore (Gilmore) winning he might know the Upon appellant’s game card. return a be- tween got under McDonald and way appellant suggested that Gilmore grew high select the card. The stakes pot McDonald was claim a be- unable to ability pay cause prove he could not juncture began had he At the net lost. to close and McDonald offered to divide his prove winnings Gilmore if he would with pay. by his ability to This Gilmore did $2,000 withdrawing he from his bank which was led to believe be returned to him Appellant together with a sum for its use. claimed be an of a illiterate resident small in Georgia, town and at the conclu- money, “game” sion large sum of including placed an Gilmore’s $2000 Egger Egger, L. San & Samuel Evans envelope supposedly to Gilmore addressed Antonio, for placed By in a mail box. suspicions this time Gilmore’s were aroused Barlow, Atty., Dist. G. E. John James and he for the Later at waited mailman. Wietzel, Raymond A. Asst. Benavides post office found con- letter was Leon Attys., Antonio, and B. Dist. San envelopes money. tain folded but not Of Douglas, Atty., Austin, for course, by McDon- State. ald had vanished.' Throughout enterprise Mc- the entire MORRISON, Judge. appellant pretended Donald to be felony prior The offense theft with strangers and hostile each where- other conviction for an offense of nature al- like pretended as McDonald to be Gilmore’s leged enhancement; punishment, partner in the transaction. years. companion its case to The State fortified show is a McDonald v. State, Tex.Cr.App., 385 S.W.2d 253. illiterate ing appellant was Antonio, person an resident of. San and we hold “If accused was a were to refuse support jail the evidence sufficient to the con to be removed court- trial, claiming viction. See Walker v. 139 Tex.Cr. room for that he was *3 623, 618, privileged expose State, 141 not to R. S.W.2d and Porter v. his features identification, 578, 67 4 witnesses Tex.Cr.R. S.W. it judicial not to re- difficult conceive the ception given which would such a be validity appel There can be no in yet claim. And no less a claim is the prior Pennsyl lant’s contention that this consequence logical argument of the vania conviction was not usable for en frequently that has been offered and Pennsylvania’s felony hancement because occasionally applying in sanctioned the statute in mini introduced evidence sets no privilege proof bodily of features the on property acquired mum the value of the accused.” Inquest” fraudulent means. “The Grand upon appellant which was convicted was for past court has in the demonstrated having fraudulently acquired in mon $68.00 its reluctance to extend rules the announced ey upon and we are not therefore called State, 272, in Beachem v. 144 162 Tex.Cr.R. pass on questions by appellant. the raised 706, Apodaca S.W.2d State, 140 Tex. 593, 381, Cr.R. 146 as By exception appel formal bill of do in have bar. Mas us the case at lant that he give contends was forced to States, 201, siah v. United 377 84 S.Ct. U.S. against court, evidence himself when the at 1199, 246, applica 12 can L.Ed.2d have no request the the of and in State the absence appellant’s present tion because counsel jury, over coun directed at all times. objections sel’s fingerprinted to be in a timely qualifications appel- The court’s of room adjoining day the courtroom on the Exception Bill lant’s of demonstrates of his #3 trial. from, no injury resulted question impres- Since is a this of first the incident. sion, in pursuaded this State we are to fol- low the already two courts which have Finding no reversible appearing, error passed upon question expres- this and the judgment the is affirmed. in Wigmore sions formed as shown below. In 658, Shannon v. Ark. 207 182 McDONALD, (dissenting). Judge Supreme S.W.2d 384, the Court of Arkan- opinion majority erroneously con- sas held that charged where an accused rely they strues two cases cite and with murder had been arrested but upon. says Judge majority Morrison the in through oversight was released on bail be- opinion persuaded that “we are follow fingerprints fore his taken, were trial the already passed the which have two courts court did entering not err in an order re- question”, taking this the referring to questing fingerprinted. the accused appellant’s fingerprints. of In Shannon 658, 207 182 the 384, Ark. Palme, 97, In La State v. 104 N.H. 179 A. Supreme Arkansas, pointed of out as Supreme 2d Hamp Court of New opinion, in- dealing with shire held finding guilty that after a of volving fingerprinting a defendant on bail release the defendant in the was still while he was out on bail. trials before custody constructive of the court could fingerprinted through Shannon had not been complain be heard to of an order Palme, oversight. In La State v. N.H. fingerprinted. court that he be A.2d the defendant was ordered quote Wigmore Evidence, We fingerprinted finding guilty to be McNaughten Ed., p. posting 386: Sec. bail.

(cid:127) long practice has Texas followed the or not just used evidence for the purpose of recognizes right rule which identifying appellant, of an they of- but were used mug fingerprint ficer to take a shot prove prior the state to conviction prisoner immediately upon Pennsylvania.' his confinement in the state of While this jail. I am might accord with action of heartily trial court not have procedure disagreement and find no compulsion with it. amounted testimonial However, sense, are practical we not here concerned with purposes literal it did for all means, question not, by any compel against and we do give testimony plan right disturbing on limiting this or it. himself. *4 procedure 'This is valuable to law enforce- I do not think this Court that would be establishing identity

ment officers in of the in 144 extending the rule Beachem v. to inmates, disseminating information this and in Tex.Cr.R. throughout country, «other officers the Apodaca Tex.Cr.R. assisting apprehension criminal of a following precedents by these identifying escapees crimi- and wanted Apodaca in the case at In the bar. defend- nals. compelled straight lines, ant was to walk sharply, put finger turn his his to nose by bar, bill In the case as reflected the at police urinate in a A bottle. officer testi- opin- by majority exception of not the but that the to act. fied defendant was ordered finger- ion, already been the had being The case as a demon- was reversed printed by jail in and the trusty the stration to by an act which tends self-in- District At- purpose Assistant entire of the crimination is to the as obnoxious torney moving for the order Court the provision constitutional of one accused that himself this to submit to direct compelled give shall be evi- crime not actually to fingerprinted was again be against dence himself self-incrimination as produce a enable the state better witness by In the case the defend- words. Beachem jail trusty, is noted that the the as it than jail say required ant inwas and he was response Court in state’s told the counsel certain words so that a state's witness query or not the about whether Court’s identify him. identi- could The witness’s he fingerprinted when appellant had been fication of the as robber was likely arrested, most originally “He was produced by based evidence was; not trusty could but it who obtained, according opinion, and was credibility the defendant and identify bring in such within a manner as it is It highest not be nature." provision prohibiting self- constitutional the state me the record that clear to from incrimination. prisoner. fingerprinting a initially not as an avenue using this vehicle They were appellant, apparent to me It that the is credibility their wit- to accelerate the Apodaca re- all three were and Beachem having police officer who ness perform quired incriminated acts which prints expert fingerprint to take was a that the case at bar them. It seems to me an order appellant under -of the squarely falls rule within the announced expert later took policeman Court. not to me these two It does seem cases. witness and testified stand as a should entertain a reluctance state, probably testi- fully for the announced, Judge these as extend rules than testi- mony credible no more doubt points Morrison out. jail given by the been mony that would have prints trusty original inmate who took the follow these This Court should either these The record reflects (cid:127)earlier. it them. cases, two or should overrule an announce- after fingerprints were taken Evi- Wigmore on sides, quotation part of “Ready” ment both on the point majority, dence, cited started, they were had trial may distinguished its face from the facts in this case. respectfully

I dissent affirmance

this case. CATON, Appellant,

Vera *5 RICHARDSON, Appellee.

O. J.

No. 7438. Appeals Civil of Texas.

Amarillo.

Feb.

Allen, Perryton, Reavis, Allen & Mc- Cobb, Dumas, & Cown for Stone, Amarillo, appellee. Stone & CHAPMAN, Justice. summary appeal judg-

This is an from a malpractice involving ment a medical Catón, appellant, against filed Vera O. J. D., Richardson, appellee, M. classified as general practitioner.