Walthall v. State

Appellant was placed on trial for the offense of burglary alleged to have been committed on the 4th day of October, 1926. In the indictment it is charged that he had been convicted in Van Zandt County for an offense of the same nature on the 13th day of October, 1917, also in Jackson County on the 4th day of October, 1919, again in Jackson County on October 4, 1919, and in San Patricio County on the 11th of March, 1920. Four convictions for felonies of the same nature were had prior to the date of the present offense. Proper copies of indictments and judgments showing the convictions coinciding with the averments mentioned were put in evidence, also testimony of penitentiary officers and others to the identity of the appellant as the person convicted.

In one of the indictments the name of the accused was given as Tessie Wicks; in the others, Robert Walthall was named.

In the motion for rehearing, the points raised in Bills of Exceptions Nos. 2, 3 and 8 are stressed. The witness Townsend testified, as shown by Bill of Exceptions No. 2, that the appellant was seen by the witness in Jackson County, was arrested while in possession of certain articles, was indicted, tried and convicted of burglary and sent to the penitentiary. He also gave in substance the following testimony: That on a certain occasion he saw the appellant asleep in a fig orchard with two big sacks of stuff — one under his head and one by him and a knife by him; that the articles in his possession were identified as coming from the burglarized premises; and that after he was convicted he broke jail and escaped.

In a forceful argument appellant insists that the details given by the witnesses, especially that which related to the appellant having a knife by his side while he was asleep and to his having broken jail and escaped, were improperly received. Many pertinent precedents are cited by the appellant. Among them are Deckard v. State, 225 S.W. 166; Payne v. State,232 S.W. 802, in both of which other precedents are collated. It was imperative that the state prove not only that the appellant committed the burglary alleged to have been committed on October 4, 1926 in Nueces County, but that it establish the identity of the appellant as the person convicted under the other indictments in evidence. Part of the testimony of Townsend set out in the bill was relevant and competent on the issue of identity.

Against the receipt of the evidence, there was urged at the time the objection that it was irrelevant and immaterial. Such an objection has frequently been held too idefinite to demand consideration. See McGrath v. State, 35 Tex.Crim. Rep., and numerous other cases collated in Branch's Ann. Tex. P. C., Sec. 208, Subd. 3. Moreover, that part of the testimony embraced in the bill which went to the identity of the appellant as the person who was convicted in Jackson County was admissible. Such being true, a blanket or general objection to the receipt of the evidence would not demand a review of the ruling of the court. See Payton v. State, 35 Tex. Crim. 510, and other cases collated by Mr. Branch in his Ann. Tex. P. C., Sec. 211. In the course of the bill, however, the appellant suggests that all references to details were calculated to prejudice his case and were improper. This is likewise quite general. The details, that is, the possession of the knife and the escape from jail, were not admissible. However, they were so intermingled with the other testimony that, considered in the light of the objection made, we are not prepared to say that the bill would show error.

Because of the peculiar nature of the offense and the penalty which the law assesses renders the matter of injury questionable. The statute reads thus:

"Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary." (Art. 63, P. C., 1925.)

This statute has been held not unconstitutional. See Brittian v. State, 85 Tex.Crim. Rep.; Stevenson v. State, 89 Tex. Crim. 143; Gerard v. State, 91 Tex.Crim. Rep.; also Cyc. of Law and Proc., Vol. 12, p. 949. The testimony of which complaint is made could contribute nothing towards the proof of the appellant's guilt of the offense charged to have been committed in Nueces County. His conviction of the other offenses named in the indictment was proved by record testimony as well as abundant and uncontroverted evidence of identity. Unless, therefore, the evidence improperly received was susceptible of appropriation by the jury to some controverted issue to the prejudice of the appellant a reversal because of it would not be authorized. According to the evidence introduced, the storeroom of the American Railway Express Company was burglarized on the night of October 4, 1926. Among other property stolen was a C. O. D. package shipped from M. Born Company, Chicago, to Martin and Buckley at Driscoll, Texas. This package was proved to contain a new suit of clothes ordered by D.C. Lee of the value of $38.00. The suit of clothes was delivered by a negro boy named Robert Walthall to the witness, Charley Jones, Walthall at the time stating thathe had ordered the suit and receiving from Jones $4.00 in payment of it. A negro boy named Robert Walthall was definitely identified by several witnesses as the person who had possession of the suit of clothes and who sold it to Jones. The evidence reveals that Jones received the suit of clothes from the appellant not more than one or two days after the burglary was committed. Appellant neither testified nor introduced evidence. The only semblance of defensive theory arises from the declaration imputed to the appellant that at the time the suit of clothes was delivered to Jones, the appellant said he "had ordered it."

There being proof of the burglary by direct and uncontroverted evidence, the appellant's possession of property recently stolen was sufficient to identify him as the offender unless there was evidence explanatory of his possession consistent with his innocence. It is not clear that the statement that "he ordered it" imputed to the appellant is of such cogency as demanded a charge upon the explanation of recently stolen property consistent with the innocence of the accused. Such a charge, however, was given. The condition of the record is such that if the complaint of the details mentioned was more pointedly before this court, it would not feel warranted in ordering a reversal by reason thereof. The evidence of the details mentioned was not susceptible of use by the jury to the prejudice of the appellant. His commission of the present offense and the previous offenses was conclusively proved. Therefore, his conviction of the present offense left the jury with no discretion in assessing the penalty. The law fixed it at imprisonment for life.

Bill No. 3 is meager to a degree that it brings up no question for review. The one attempted, however, was of the same nature as that embraced in bill No. 2.

Bill No. 8 is preserved to the overruling of the appellant's motion for new trial in which he set up for the first time his claim of former jeopardy. The plea is based upon the avertments that he had previously been indicted and put on trial for the identical offense charged to have been committed on October 4, 1926, in Nueces County; that after the impanelment of the jury and plea of not guilty and after the trial had begun the jury was discharged upon a motion made by the attorney representing the appellant, but the appellant gave no personal consent to the discharge. Such a plea is not available after verdict. It appears from the bill that he filed no plea of former jeopardy and such an issue cannot be made after a verdict rendered by the jury. See Dunn v. State, 92 Tex.Crim. Rep.; Torres v. State, 91 Tex.Crim. Rep.; Johnson v. State, 26 Tex.Crim. App. 631; Powell v. State, 17 Tex.Crim. Rep.; Holmes v. State, 20 Tex.Crim. App. 509; Barton v. State, 43 S.W. 987; Pickett v. State, 43 Tex.Crim. Rep.; Hill v. State, 75 Tex. Crim. 555, 186 S.W. 769; Lee v. State, 66 Tex. Crim. 567, 40 L. R. A. (N. S.) 1132.

The motion for rehearing is overruled.

Overruled.

ON APPELLANT'S APPLICATION FOR PERMISSION TO FILE SECOND MOTION FOR REHEARING.