Williams v. State , 93 Tex. Crim. 94 ( 1922 )

Appellant was fined $25 upon his plea of guilty to aggravated assault.

Upon the night of March 10th, 1922, accused had some trouble with his wife. Her sister, who was present at the time, sent a small boy to report it to the officers. The constable received the report and arrested appellant as he was trying to catch a moving freight train. He gave his name to the officer as Jess Sawyer, but the negro boy insisted that appellant was the right negro. He was placed in jail by the constable and an entry made on the sheriff's jail docket that he was held for fighting or an affray. On the morning of March 11th he was released on bond which was obtained by his attorney. Soon after his release on this bond the constable learned of it and demurred at the small amount of bail, insisting that he was guilty of an aggravated assault, whereupon he filed complaint before the assistant county attorney charging appellant with aggravated assault. Information upon this complaint was immediately filed in the County Court which was in session, a capias procured and the constable again arrested accused on the latter charge, and brought him into court. The regular judge was absent at the time, but a special judge accepted his plea of guilty. The point is made that the special judge was acting without authority. The record is silent as to the manner in which he is supposed to have been authorized to act in the capacity as judge, but we regard that as unimportant in view of the fact that the regular judge came in during the proceedings, questioned accused, again took his plea of guilty, assessed the fine and made the docket entry. Two days later a motion for new trial was filed in which it was claimed that (a) the plea was taken without notice to appellant's attorney; (b) that the constable induced accused to enter the plea by threats, promises and fraud, being led to believe by the constable that to enter the plea of guilty would be the best course to pursue; (c) that accused is not guilty of the charge, but has a good defense thereto.

It appears from the record that when the officer complained at appellant having been released under bond for an affray, insisting that he was guilty of an aggravated assault, the deputy sheriff telephoned appellant's attorney that a larger bond would be necessary and was told the new bond required would be furnished, but before the attorney came the plea of guilty had been entered. The other matters alleged in the motion were controverted and evidence introduced upon hearing the motion. The constable denied having used any coercion or persuasion of any kind to procure the plea of guilty, but asserts that accused said he wanted to plead guilty before but his attorney objected. It is made clear from the statement of facts that accused waived the two days which he might have claimed to prepare for trial, waived a jury, and entered his own plea of guilty. According to the testimony of appellant and his wife he was not guilty of the charge, but his sister-in-law makes out a clear case against him. In view of article 582 C.C.P. permitting plea of guilty in misdemeanor cases to be entered either by the accused or his counsel in open court, and that the lowest fine was assessed, in the instant case, and the question of improper acts on the officers' part to induce the plea and the denial of, guilt turning upon issues of fact which were determined by the court against appellant after hearing evidence thereon, we are constrained to hold that setting the judgment aside would be unauthorized by us. Under a somewhat similar state of facts this court declined to disturb a judgment in Kirk v. State,60 Tex. Crim. 172, although the punishment there inflicted was much over the minimum fixed by the statute. Meeking v. State,67 Tex. Crim. 69; 148 S.W. Rep., 309 and Wagner v. State,87 Tex. Crim. 47, 219 S.W. Rep., 471, cited by appellant as supporting his contention present quite different states of fact from those disclosed in the present record, as an examination of those cases will reveal.

Believing we would not be justified in disturbing the judgment, the same is affirmed.

Affirmed.

ON REHEARING December 13, 1922.