McIntosh, Judge v. Watts , 1928 Tex. App. LEXIS 418 ( 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, 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.

Opinion. Appellant by appropriate propositions contends that neither appellee's pleadings nor the evidence in the case is sufficient to show that the court had jurisdiction of the cause of action asserted in appellee's petition and to grant the relief sought by appellee and awarded by the judgment rendered herein. The jurisdiction of the county court over the charge of simple assault, to which appellee pleaded guilty in the corporation court, was appellate only. Code of Criminal Procedure 1925, arts 64 and 57. Except for the purpose of enforcing such appellate Jurisdiction, the county court had no authority to control, by mandamus or otherwise, the proceedings in said court or the action of the Judge thereof, whether ministerial or otherwise. Johnson v. Hanscom, 90 Tex. 321, 322, 37 S.W. 601, 38 S.W. 761; De Witt County v. Wischkemper, 95 Tex. 435, 436, 437, 67 S.W. 882; Berume v. Hughes (Tex.Civ.App.) 275 S.W. 268, 270, par. 2. Article 833 of said Code provides that, in case of an appeal from a judgment of the corporation court, the defendant shall be committed to jail unless he give bond with sufficient security to be approved by the court in double the amount of fine and costs adjudged against him, but in no event in a penal sum less than $50, which bond shall be payable to the state of Texas, shall recite that the defendant has been convicted in said case and has appealed, and shall be conditioned that the defendant shall make his personal appearance before the court to which such appeal is taken and there remain from day to day, and term to term, to answer said charge in said court. Article 834 of said Code provides that when such an appeal bond, that is, one conforming to the requirements of said article 833, is filed with such judge, the appeal shall be held to be perfected. Article 837 of said Code provides that in all appeals from the corporation court to the county court the trial shall be de novo, the same as if the prosecution had been originally commenced in said court. The necessary effect of appealing from a conviction in a corporation court is to vacate the judgment of conviction rendered against the defendant therein and transfer the charge against him for trial in the county court, as though originally filed therein. We do not think the record presented is sufficient to show that the appellate jurisdiction of the county court ever attached in this case.

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.) 168 S.W. 968, 972 (writ refused), as follows:

"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, 24 Tex. 333; Watkins v. Huff [Tex. Civ. App.] 63 S.W. 922, and cases there cited. The petition, in order to be free from objection, should not only aver every fact essential to show the right to the service sought, but should also negative every other fact which the officer might urge as a legal excuse for not performing the service demanded. In granting a writ against a public official, seeking to compel the performance of a public duty about which the officer may have no personal concern, the court must be fully advised on the subject.

"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 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, 198 S.W. 582, 583.

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, 116 Tex. 570, 296 S.W. 283, 284; Hume v. Schintz, 90 Tex. 72, 74, 36 S.W. 429. If appellant were required to enter a judgment of conviction against appellee nunc pro tunc, approve and file the bond tendered, and transmit a transcript of the proceedings, together with the original papers, to the county court, the judgment so entered would be thereby vacated by the voluntary action of appellee, and such judgment would be no longer available as a basis for a plea of former jeopardy. Dupree v. State, 56 Tex.Cr.R. 562, 120 S.W. 871, 872, 873, 23 L.R.A. (N. S.) 596, 133 Am.St.Rep. 998; Id., 56 Tex.Cr.R. 387, 120 S.W. 875; Harvey v. State, 57 Tex.Cr.R. 5,121 S.W. 501, 136 Am.St.Rep. 971.

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, 11 S.D. 431, 78 N.W. 353. Even where the court has jurisdiction, mandamus should not be awarded to require the entry of a judgment as a basis for a plea of res judicata, former conviction, or former jeopardy, when such plea may be sustained on the record presented without such an entry. Hume v. Schintz, supra.

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.