Parham v. State , 87 Tex. Crim. 454 ( 1920 )

Appellant was charged with and convicted of theft of an automobile.

When the case was called for trial, appellant presented an application for a continuance, which being overruled he entered a plea of guilty and was awarded by the jury the minimum punishment of two years. The application is not signed by the defendant. There is, however, at the end of the application a statement of the clerk to the effect that it was subscribed and sworn to by the defendant on the _____ day of November, 1919, and the clerk placed his seal on it on the _____ day of December, 1919. The days are left blank. The application is based on the absence of counsel who he alleges resided in Dallas, Texas. Our Constitution provides that an accused may be heard by himself or counsel, or both, and this right should be accorded him in a proper manner and under appropriate circumstances. The statement as shown in connection with the application is that his counsel was engaged in cases set in court in Dallas County; that they came up about the same time that this case was tried, and that counsel was detained by reason of those cases in Dallas. Under the decisions of this court we are of opinion this is not a sufficient showing. There was no attempt made by appellant to re-set his case in order to give his attorney an opportunity to be present. He only sought to continue it for the term. This question has been decided adversely to appellant in Mason v. State, 74 Tex.Crim. Rep., and to the same effect is Davis v. State, 69 Tex.Crim. Rep., 154 S.W. Rep., 226 and Usher v. State, 47 Tex.Crim. Rep.. The Mason case is in point. Doubtless had the court been requested to reset this case it would have been granted; at least there is no attempt on the part of appellant to have the case re-set in order that his attorney might be present.

There are two papers in the record purporting to be bills of exception but neither are signed nor approved by the judge. There is a fourth bill which was reserved to the action of the court with reference to the testimony of two State's witnesses in that the court failed to limit and restrict the force and effect of their testimony. The substance of their testimony was that appellant and two others came driving to the depot and alighted at the platform and began taking "tool joints." When the boys began to take these tool joints the witness, Somerville, who was guard or policeman at the station, arrested them. He was not aware at that time that the auto they were driving was the one with which he was later charged with stealing. The evidence shows that the auto they were driving had been stolen only a few minutes before and for the purpose of going to the depot to get these "tool joints." The object in securing the joints was to get money to pay board. The testimony of the other witness, who was also an officer, was with reference to statements the boys made to him in regard to these matters. These statements in a general way may be stated to be admissions and confessions with reference both to the taking of the car and the taking of the tool joints. The court did not limit this testimony to any purpose, and after the trial appellant filed an exception to the failure of the court to so instruct the jury. As the matter is presented it cannot be considered. There was no exception taken to the charge at the time, though the bill recites that the charge was given appellant for inspection. The reason given why an exception was not then reserved was that appellant was unlearned in the law and did not know how to take advantage of the situation by excepting. This would hardly furnish a reason legally; but in any event under the circumstances of this case it would not present any serious question we think. Appellant pleaded guilty. The State introduced evidence in accordance with the statute which requires it to be done where pleas of guilty are entered. The facts show beyond any question or debate that appellant committed the theft of the auto, and that he drove to the depot a short distance away, after taking the auto, to get the tool joints and was arrested. The minimum punishment was assessed under a plea of guilty.

Finding no reversible error in the record the judgment will be affirmed.

Affirmed.

On Rehearing June 2, 1920.