208 S.W.2d 366 | Tex. Crim. App. | 1948
Lead Opinion
Upon a grand jury indictment alleging robbery with firearms and also a prior conviction for a felony to which the penalty of death is affixed as an alternate punishment, appellant was found guilty and assessed life imprisonment in the penitentiary.
The indictment was returned by a grand jury in Collin County, where the offense was committed. The case was transferred to Denton County for trial.
It is alleged that appellant stopped a young man and his girl companion on a highway, robbed the man of his clothing, his money, a pocketbook, and a knife. It is in evidence that he took the young lady and drove away in his car, leaving the victim of the robbery in the road without clothing. The evidence is amply sufficient to sustain the conviction on this charge and there is no evidence in behalf of appellant to contradict it.
It appears from the bill of exceptions in the case that the grand jury returned another indictment at the same time as the one in this prosecution, in which they charged the appellant with rape and also alleged a prior conviction for the same offense alleged in the indictment now before us. The District Judge was disqualified in the case and the Honorable A. R. Stout, of Waxahachie, was transferred to Collin County and presided
One bill of exception (not numbered) complains of the admission in evidence of statements of the sheriff who arrested Tuley. We see nothing in this evidence more than inquiry to determine whether or not any statement was made by Tuley, and apparently the State took the view that it was not admissible as no statement was given as coming from the defendant.
Another bill of exception (not numbered) complains of the evidence of the young lady who was the victim in the rape prosecution, in which she testified as to the ..transaction including the details of the robbery and the fact that she was forced into appellant’s car and driven away. It includes no statement about the rape and the court’s qualification to the bill makes very clear a reason for its admission. Furthermore, all of the evidence is pertinent as being part of the same transaction giving rise to the present prosecution.
A bill of exception complains of the refusal of the court to sustain his challenge to a juror. The substance of the objection was that on voir dire examination the juror testified that there could be no doubt in his mind as to the guilt or innocence of a person accused of an offense, and that he could not give a defendant accused of a criminal offense the benefit of a reasonable doubt, because he would know whether or not the accused was guilty or innocent after listening to the evidence. The qualification of the bill shows that the court examined the juror and is of the opinion that he had not understood the questions which had been asked him by defendant’s counsel. He instructed the venireman concerning the law of reasonable doubt and became satisfied that he would give defendant the benefit of any reasonable doubt that might exist. The court then overruled counsel’s challenge and no objection was made to his ruling or exception taken thereto. The complaint will not be sustained.
The last bill of exception pertains to the complaint first above discussed, concerning the use of the prior conviction in the present case. Further discussion will not be required.
We find no reversible error in the record and the judgment of the trial court is affirmed.
Rehearing
ON MOTION FOR REHEARING.
In his motion for rehearing- appellant criticizes our original opinion which is subject to the construction that in the present case a former conviction could be used to fix the status of an “habitual criminal” upon appellant although it had previously been used to enhance the punishment in another case. Appellant points out that the question of an “habitual criminal” was not involved in this case. In this regard appellant is correct. Appellant was contending that in a prosecution for rape the
As we understand it appellant here is urging the very same proposition which was before the court in Brown v. State, 150 Tex. Crim. Rep. 386, 196 S. W. (2d) 819, and held adversely to appellant’s contention. There a prior conviction was alleged to enhance the punishment and the contention urged that because it was merely so alleged it was such “use” of the prior conviction a"s to preclude its use in a subsequent prosecution. We quote from the opinion in Brown v. State, (supra.)
. “This court is committed to the proposition that for the purpose of enhancing the punishment a prior conviction may not be used but one time. Many cases so holding will be found in the notes under Articles 61, 62, 63 and 64, Vernon’s Ann. Tex. P. C. In the present case, appellant is seeking to have us go one step further. In the second count of cause No. 5731, the State alleged a prior conviction in cause No. 5607, thereby making available to the State, if it is so desired, the use of the conviction in No. 5607 to enhance the punishment in No. 5731. It is obvious that the State did not use the conviction in No. 5607 to enhance the punishment. Appellant is seeking to have us say that because the averments in the second cause in cause No.
We regard the holding in Brown v. State, (supra) and Sigler v. State (supra) as fundamentally sound and decisive of the question under discussion.
That part of our original opinion is withdrawn which appears to be predicated on the issue that the allegation of the former conviction was to fix upon appellant the status of an habitual criminal.
It is not thought necessary to consider further other matters urged in the motion.
The motion for rehearing is overruled.