5 S.W.2d 1003 | Tex. App. | 1928
This suit was instituted in the county court of Limestone county by appellee, M. H. Watts, against appellant, J. G. McIntosh, judge of the corporation court of the City of Mexia, in said county, for a writ of mandamus commanding and requiring appellant to enter on the records of said court a judgment of conviction against appellee on a plea of guilty to a charge of simple assault; to approve and file a purported appeal bond tendered by appellee for the purpose of transferring said case from said court to the county court for trial de novo; and to prepare a transcript of all proceedings in said corporation court and transmit the same, together with all the original papers, to said county court.
The facts show that appellee was charged by complaint in said corporation court with simple assault on the person of his wife; that he appeared in person before appellant, the judge of said court, and entered a plea of guilty to said charge; that said appellant assessed his punishment at a pecuniary fine, which, together with costs accrued, amounted to the sum of $15.70; that no judgment of conviction was entered on the record of said court; that thereafter appellant was informed that a complaint charging appellee with the offense of assault to murder, *1005 alleged to have been committed on the person of his wife, had been filed against him before a magistrate; that said charge was based on the same transaction upon which said charge of assault was based; that he determined that it was improper to permit appellee to pay a fine for simple assault when such payment would be no defense to a charge and conviction for a higher grade of offense growing out of the same transaction; that he decided to set aside appellee's plea of guilty and dismiss the case against him; that he did so and entered a judgment of dismissal on the records of said court; that appellee's attorney presented to appellant an appeal bond for the purpose of removing said prosecution for assault from the corporation court to the county court for trial de novo; that the sureties on said bond were sufficient, but that appellant refused to approve and file the same because he had dismissed, or had determined to dismiss, the charge of assault to which appellee had pleaded guilty in said court. Subsequently appellee was required by the magistrate before whom said charge was pending to give bond for his appearance before the district court to answer said accusation. Thereafter an indictment based on said transaction was returned against appellee by the grand jury, but whether for assault with intent to murder or for aggravated assault does not clearly appear. All this occurred prior to the hearing herein.
The court heard appellee's petition at a regular term and rendered a judgment awarding a mandamus against appellant, ordering and requiring him to enter on the records of said court a judgment of conviction against appellee on a plea of guilty to simple assault, to file and approve the appeal bond presented to him by appellee, and to make out a transcript of the judgment so entered and forward the same, with all the papers in said case, to the county court. From such judgment this appeal is prosecuted.
The essential requirements of a petition for mandamus to compel the performance of an alleged official duty by a public officer are stated in Johnson v. Elliott (Tex.Civ.App.)
"There is still another reason which we think justified the court below in dismissing the application for this writ of mandamus. Such writs are extraordinary remedies, and, when invoked for the purpose of compelling the performance of some official duty enjoined by law, it must clearly appear from the petition that the applicant is entitled to the service which he seeks to have performed. Ry. Co. v. Randolph,
"The propriety of issuing the writ is therefore not to be determined by the defense which the official may interpose, but by the allegation and proof of facts which show affirmatively and *1006 clearly that under the particular circumstances be is legally bound to perform the service. The duties of the court would be none the less imperative if the officer failed to set up any defense whatever. It is not a matter which he can waive."
The record in this case shows affirmatively that no judgment of conviction was ever entered against appellee, but, on the contrary, that his plea of guilty was set aside, the case dismissed, and appellee set at liberty. We think such judgment of dismissal was effectual to bar the subsequent enforcement of any demand against appellee for the payment of the fine imposed and the costs accrued in such prosecution either by execution against his property or by seizure and imprisonment of his person, regardless of how erroneous such judicial action may have been. From a judgment dismissing a criminal case in which the defendant stands charged with an offense against the penal laws of this state, no appeal lies. Ryan v. State, 81 Tex.Cr.R. 632,
There is another reason why we think the record fails to show that the appellate jurisdiction of the county court ever attached. No copy of the purported appeal bond is attached as an exhibit to the pleadings in this case, nor are the contents thereof alleged in appellee's petition. Neither is such bond found in the statement of facts nor the contents thereof recited therein. The burden was on appellee to allege and prove that the appeal bond tendered by him to appellant for approval complied substantially with the essential requirements of the article of the Code of Criminal Procedure above referred to. On the acceptance and approval of an appeal bond by the judge of a corporation court, the defendant tendering the same is discharged from confinement and set at liberty during the pendency of such appeal. Clearly, the judge of such court should not be required to approve an appeal bond, unless it complies substantially with the requirements of said Code and is sufficient to authorize a forfeiture thereof upon breach of its conditions, and to support a recovery of the penalty stipulated therein against the defendant and his sureties on scire facias, regardless of the sufficiency of such sureties from a financial standpoint. Appellee failed to discharge the burden so imposed.
Appellant, as a further ground for reversal, contends that the court erred in granting the writ of mandamus herein because such writ will be of no practical or substantial benefit to appellee. Appellee alleged as ground for the granting of said writ his legal right to plead his conviction in said corporation court of the offense of simple assault in bar of conviction for such offense if put upon trial for a higher grade of assault growing out of the same transaction. The rule is well established that the writ of mandamus, being a discretionary writ, will not be awarded for the mere purpose of determining an empty and barren technical right on the part of the petitioner. Atlantic Producing Co. v. Jackson,
Even if the action of the judge of the corporation court in setting aside appellee's plea of guilty and the fine imposed in pursuance thereof, without his consent, was void as an unwarranted exercise of judicial authority — an issue which need not be determined — appellee could not be injured thereby. In such event his arraignment on said charge, his plea of guilty thereto, and the assessment of a penalty thereon by the judge of the corporation court constituted jeopardy as to the charge of simple assault and may be pleaded as such. 16 C.J. 258, § 428; State v. Adams,
Each of the errors discussed requires a reversal of the judgment appealed from, and it is so ordered. Because it appears that no judgment of conviction was ever entered against appellee and that at or before the time he presented his purported appeal bond for approval the charge against him was dismissed, the county court was without appellate jurisdiction in the premises, and therefore without jurisdiction to award a mandamus herein, and this suit is ordered dismissed. *1007