Ex Parte Wm. H. Bonds

Relator presents a motion for rehearing insisting that in our original opinion we erred in remanding him to the penitentiary authorities under a life sentence.

Before discussing what we conceive to be the controlling question we wish to call relator's attention to an apparent misconception on his part of the record. In the original brief, in the motion for rehearing, and in a supplemental brief, he proceeds upon the theory that the judgment of conviction is uncertain in the penalty assessed. This position is not borne out in the record before us. Attached to relator's application for the writ of habeas corpus is a copy of the indictment, judgment and sentence.

After reciting in the judgment that those things were done which are necessary before a plea of guilty in a felony case less than capital may be entered before the court (Acts 1931, 42d Leg., p. 65, ch. 43, Art. 10-a and Art. 12, Pocket Part, Vernon's Texas C. C. P., Vol. 1) the judgment proceeds as follows: The Court after "having heard and considered the pleadings and evidence offered, is of the opinion therefrom that the defendant Wm. Henry Bonds is guilty of the offensecharged against him. (Italics ours). It is, therefore, considered and adjudged by the Court that the defendant Wm. Henry Bonds is guilty of the offense of theft of an automobile, theft over $50.00 as confessed by him in his said plea of guilty herein made, and that he be punished by confinement in the State penitentiary for a term of life." (Italics ours). The sentence recites that relator had been adjudged guilty of "Theft of automobile, theft over $50.00, and that he should be confined in the penitentiaryfor a term of life years." (Italics ours). It will thus be seen that relator's contention that the penalty assessed was uncertain is groundless, and the authorities cited upon that point not appropriate. Especially is this true as to Traxler v. State, 184 S.W.2d 286, which involved the very jurisdiction of the court, as well as uncertainty in the judgment as to the penalty.

We go now to a consideration of what does occur to us as a most serious question. The indictment charged relator with theoffense of the theft of an automobile over the value of $50.00. It was then averred that relator had been theretofore convicted of a number of prior felonies. The only offense charged was theft of the automobile. The allegation of the prior convictions charged no offense, but, as stated in the early case of Long v. State, 36 Tex. 6, was the averment of a "historical fact," which, if established, affected the punishment in the event relator was found guilty of stealing the automobile. From the time the Long case was decided in 1871 it has been the holding of this court that before one could be punished as an "habitual criminal" under the provisions of Art. 63 of the Penal Code the prior convictions must be alleged, and the accused must not only be found guilty of the offense charged against him, but it must also be found that the prior convictions of accused had occurred as alleged before the court could assess a life term in the penitentiary. When cases are tried before a jury, the charge of the court, and verdict usually aid in appraising the judgment, and in determining whether there has been a finding for the State regarding the prior alleged convictions.

When a plea of guilty in a felony case is entered before the Court under the provisions of the 1931 Act of the Legislature (supra) frequently, — as in the case now before us — we have nothing but the judgment and sentence. In a plea of guilty before a jury in a felony case accused admits all material allegations of the indictment as well as the statutory elements of the crime charged. See Aills v. State, 114 Tex.Crim. R.,24 S.W.2d 1097, Anderson v. State, 118 Tex.Crim. R.,42 S.W.2d 1012; Holley v. State, 122 Tex.Crim. R., 55 S.W.2d 1040; Grounds v. State, 140 Tex.Crim. R., 144 S.W.2d 276. This is not true by the very terms of the act which permits an accused to waive a jury and enter his plea of guilty before the court in felony case less than capital. There can be no question that the averment of prior convictions is a material allegation because it directly affects the penalty sought.

After directing that certain formalities must be complied with Acts 1931, 42d Leg., Ch. 43, Sec. 3, Art. 12, Vernon's Pocket Part, Texas C. C. P., Vol. 1, reads as follows: "* * * Provided, however, that it shall be necessary for the State to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the Court as the basis for its verdict, and in no event shall a person charged be convicted upon his plea of guilty without sufficient evidence to support the same."

It will be noted that the court is to be governed by the evidence "as a basis for its verdict." The expression is rather unusual, but it seems to follow therefrom that the recitals in the judgment must of necessity support the final action of the court, the same as would be required in the verdict of a jury (if the case was being tried before a jury) to support the judgment giving effect to the verdict.

The theft of an automobile being the only offense charged in the indictment, the recital in the judgment that it was the opinion of the court that relator "was guilty of the offense charged against him" was a finding only upon that phase of the case. This is borne out by other recitals in the judgment and sentence heretofore set out. There is no finding, or recital in the judgment that relator had been convicted of the prior felonies as alleged, which is a condition precedent to the assessment of a penalty of a life term in the penitentiary.

If we were permitted to indulge in presumptions against relator it might be assumed that the court did find that relator had been convicted of two prior felonies, otherwise he would not have fixed the punishment at life imprisonment. But there is no recital in the judgment to reflect such finding. We are bound not by some finding which is in the court's mind, but by those which are reflected from the judgment, or from what under the circumstances here present is referred to as the court's verdict.

Under the judgment of guilt as to the theft of the automobile the court would have been authorized to assess a penalty of imprisonment in the penitentiary for not less than two nor more than ten years. There is no minimum time named in the judgment or sentence as was the case in Ex parte Erwin, 145 Tex. Crim. 504,170 S.W.2d 226, nor do the circumstances bring the case within Ex parte Pruitt, 139 Tex.Crim. R., 141 S.W.2d 333. It is not to be understood that we intend to intimate that the indeterminate sentence law (Art. 775 Cow. C. P.) would have application under the habitual criminal statute. Art. 63, P. C. for therein there is no minimum penalty available.

This court is without authority to fix a punishment for the theft of the automobile and the trial court was without authority to assess lifetime imprisonment against relator under the recitals in the judgment.

It appears that relator has to his credit more than three years' time in the penitentiary.

Under the circumstances stated it appears that relator is entitled to be discharged from serving further time in the penitentiary under the judgment and sentence before us.

Relator's motion for rehearing should be granted, the order remanding him set aside and his release from the penitentiary ordered.

My brethren have reached a different conclusion. For reasons herein stated I respectfully register my dissent.