Patton v. State

ON EEHEAEING.

April 5, 1911.

PRENDERGAST, Judge.

The appellant has filed a motion and a supplemental motion for rehearing, insisting that the court erred in affirming this case in holding, “That because the appellant plead guilty after the court had fully and clearly admonished him, as required by law, he can not afterwards claim any such grounds for a new trial.” Also that the record shows that the appellant was denied counsel. Also that the record does not affirmatively show that the jury was composed of twelve men, claiming that it might have been composed of thirteen or more. Also because the judgment of sentence is not numbered, that only by circumstances can it be construed to apply to the appellant in this case, and that as it is not dated it does not show .that it was not passed before the two days elapsed in which the appellant was allowed to file a motion for new trial, and it does not show that the appellant waived the two "days and that the sentence does not show that he is to be confined in the penitentiary of this State according to the laws governing the same. Article 817 of the Code of Criminal Procedure, says: “New trials in cases of felony shall be granted for the following causes and for no other. First, where the defendant has been tried in his absence or has been denied counsel.” The- claim in this case is that the appellant was denied counsel. This statute contemplates that such denial, if it occurs,' should be by the court or by the State in some way. This record instead of showing that he was denied counsel, on the contrary, if it shows anything, clearly shows that he had ample time and opportunity to employ counsel, and if he did not do so it was no fault of the court or the State, either directly or indirectly. Hence, he has' no ground' of complaint on that score. The judgment and record shows that before he plead guilty the court admonished him in every particular and particularly as required under articles 554-5 of the Code of Crim. Proc., before the court would accept his plea of guilty. Even in introducing the confession of a defendant this court in the case of Rice v. State, 22 Texas Crim. App., 654, says:

“The only serious question is, was the plea a voluntary confession? It is contended by defendant’s counsel that it was not, because the defendant was induced to make said plea by the advice of Mansker, the owner of the (stolen) horse, that fit would go better with him’ to so plead. Hnder the earlier decisions upon this subject the objection to the confession would perhaps be well taken, but the almost universally recognized doctrine now' is that to render a confession inadmissible upon the ground that it was induced by the promise of some benefit to the accused, such promise must be positive, and must be made or sanctioned by a person in authority. It must also be of such character as would be likely to influence the accused to speak untruthfully. (Whart. Cr. Ev., sec. 651, et seq.; Thompson v. The State, 19 Texas Crim. App., 595.) The confession in this case is not within the rule stated, and was, we think, a voluntary confession within the meaning of the statute, made after the defendant had been duly cautioned that it might be used against him, and it was not error to permit said confession to be proved.” This case has been followed uniformly and many times by this court.

The other grounds of complaint are for the first time set up in the motion for rehearing herein, which was filed on February 8, 1911, and the supplemental motion for rehearing, which was not filed till March 28, 1911. Article 904, Code Crim. Proc., gives this court the power and authority to reverse and remand a cause for a new trial, but expressly provides that “this court shall presume, among other things, that the jury was properly empaneled and sworn, unless it was made an issue in the court below and it affirmatively appears to the contrary by a bill of exceptions properly signed and allowed by the judge of the court below.” The judgment of conviction, among other things, states: “Thereupon a jury, to wit: - and eleven others was duly selected and sworn,” etc. The contention is that because there is a space left to put in a name for the twelfth man, who is always the foreman, that this court ought to presume that there were thirteen or more men constituting the jury. Such a presumption, if it could be indulged by this court would be a violent one not justified by the record, the law or the facts.

The contention that the judgment of sentence was not numbered nor dated, nor shows that the appellant was to be confined in the penitentiary has no merit whatever. The judgment of conviction entered clearly states that the appellant is guilty as confessed by him in his plea of guilty and his punishment “having been fixed by the jury at five years confinement in the penitentiary,” he is to be punished “by confinement in the penitentiary for five years.” The judgment of sentence recites in substance the judgment of conviction and in pronouncing the sentence is as follows:

“It is the order of the court that the defendant, Wyatt Patton, who has been adjudged to be guilty of sodomy, and whose punishment has been assessed by the verdict of the jury at confinement in the penitentiary for five years, be delivered by the sheriff of Shelby County, Texas, immediately, to the superintendent of the penitentiaries of the State of Texas, or other person legally authorized to receive such convicts, and the said Wyatt Patton shall be confined in said -- for five years, in accordance with the provisions of the law governing the - of said State, and the said Wyatt Patton is remanded to jail until said sheriff can obey the directions of this sentence. But inasmuch as the defendant has given notice of an appeal to the Court of Criminal Appeals this sentence shall stand suspended until this appeal can be heard and acted upon by-said Court of Appeals and its mandate can be received and filed by the clerk of this court.” The very object of the statute in requiring that such matters shall be complained of in the lower court and shown to this court by bill of exception is that the lower court may correct any such minor defects as are complained of herein. Hone of them are material to the defendant in any such way as to show that this court ought to reverse this case.

So far as the evidence that was introduced was concerned on his plea of guilty, it was only introduced for the purpose of furnishing the jury data to fix the penalty. If there are circumstances of aggravation the jury are thereby enabled to fix a higher than the lowest penalty. In this case the lowest penalty was affixed so that no injury whatever has occurred to appellant on that account.

The motion and supplemental motion for rehearing are overruled.

Overruled.