Stanfield v. State , 152 Tex. Crim. 324 ( 1948 )

The offense is theft of personal property over the value of Fifty Dollars. The punishment assessed is confinement in the state penitentiary for a term of two years.

The evidence adduced by the state, briefly stated, shows that appellant accompanied by M. C. Carter and George Hill went to the home of Domingo Ramos about 3 A. M. on January 17th, 1947, aroused him from his sleep, entered his home, and sought to induce him to engage with them in a game of dice or poker. His wife, who had also been asleep, arose to prepare coffee while her husband was dressing, and she saw appellant pick up her husband's billfold which was lying on the bed and leave the house. She immediately told her husband that appellant had taken his billfold, and he got his pistol and restrained George Hill until the officers, who had been called by his wife, arrived. The empty billfold was found by a boy early the next morning who turned it over to his father who then delivered it to the officers.

After appellant and Carter had left the home of Ramos, he, appellant, gave Carter $30.00 and said that it was his, Carter's, part of the money which he, appellant, got down at the Mexican's house. The balance of $324.00 which Ramos said he had in the billfold at the time was not recovered. Appellant did not testify or offer any affirmative defense.

After the trial, which resulted in his conviction, appellant filed a motion for a new trial in which he charged that he had been denied counsel to represent him in this cause, in this, that he was indicted many months ago; that he was told by several persons that the case was not going to be tried; that he was not aware that it would be tried on the day it was tried; that when he was informed that he would be tried he requested that he be given sufficient time to secure counsel but that this request was denied by the court.

On the hearing of the motion, the court heard evidence relative to the allegations therein. Appellant, by his testimony supported his allegations in part. He admitted however, that his father read in the newspaper about a month prior to the trial that the case would be tried and informed him thereof but he failed to go to see Mr. Dean who represented him and George Hill at the examining trial. Mr. Dean testified that complaints were filed against appellant and George Hill charging them with theft of money from Domingo Ramos; that he agreed to represent both of them at the preliminary hearing for the sum of $100.00 which he did; that they were both in jail at the time; that the wives of the defendants made an effort to secure bondsmen but failed; that he then suggested that Mr. Williams some times made bonds but charged for doing so. Mr. Williams was contacted and he made bond for both prior to the return of an indictment and after the indictment was returned for which he charged $250.00. Thereafter, Mr. Dean had a conversation with appellant in which he told appellant that he had two indictments pending against him, one for theft, and one for running a gambling house; that he would represent him in both cases for the sum of $500.00 which would have to be paid before he went to the courthouse; that appellant thought the fee was excessive; that he never came back, paid not a penny of the fee and this led Dean to believe that perhaps he had obtained some other attorney to represent him. The court, at the conclusion of the evidence, overruled the motion. The court's action in this respect is fully sustained by the holding of this court in the cases of Mullens v. State,35 Tex. Crim. 149 (32 S.W. 691); and Holden v. State, 89 Tex. Crim. 628 (232 S.W. 803).

The granting or denial of a motion for a new trial rests largely within the discretion of the court and unless it is made to appear that the court abused his discretion with respect thereto, this court would not be justified in disturbing his judgment. We think that the evidence is ample to sustain the court's conclusion on the subject.

After appellant had perfected his appeal to this court by giving notice thereof and by entering into recognizance, he presented the trial court with six bills of exception for allowances and approval.

By his first bill of exception, he complains of the trial court's action in overruling his motion for a new trial. This question has been fully discussed hereinabove and we see no need for any further discussion thereof.

By Bill of Exception No. 2 he contends that he was denied his legal right to be present when the jury panel for the week was interrogated by the court as to their qualifications as jurors. This bill fails to show that appellant made any objections thereto or reserved any exceptions at the time, nor did he raise the question in his original motion for a new trial. However, he did attempt to raise the question in an amended motion which he filed after he had perfected his appeal which motion the court declined to consider for want of jurisdiction. He now seeks to raise this question by bill of exception. This, he cannot legally do under the facts as disclosed by the record. See Tores v. State, 74 Tex.Crim. R. (166 S.W. 523); Walker v. State, 78 Tex.Crim. R. (181 S.W. 191); and Humphries v. State, 79 Tex.Crim. R. (186 S.W. 332).

By Bills of Exception Nos. 3 and 4 he undertakes to raise some questions relative to the court's charge. There were no objections made to the court's charge and no exceptions taken at the time. Hence, these matters are not properly brought before this court for review.

By Bill of Exception No. 5, he complains of the trial court's action in declining to grant his motion for leave to file an amended motion for a new trial because the court had lost jurisdiction of the case. We think this matter is fully disposed of by what we have said in disposing of Bill of Exception No. 2.

By Bill of Exception No. 6, he claims that he was put upon trial without the benefit of counsel. This bill is without merit. Moreover, the question raised by the bill was definitely disposed of in our discussion of his contention that the trial court erred in overruling his original motion for a new trial. A further discussion of the question would only extend this opinion at greater length and would serve no useful purpose.

No error appearing in the record, the judgment of the trial court is affirmed.

Opinion approved by the Court.

ON APPELLANT'S MOTION FOR REHEARING.