# Donald v. State > Court of Criminal Appeals of Texas · June 19, 1957 · 165 Tex. Crim. 252 URL: https://www.frixlaw.com/law-library/cases/9648013 ## Case - **Full name:** B. F. Donald, Jr. v. State - **Court:** Court of Criminal Appeals of Texas - **Decided:** June 19, 1957 - **Citations:** 165 Tex. Crim. 252; 306 S.W.2d 360; 1957 Tex. Crim. App. LEXIS 2309 - **Precedential status:** Published - **Opinion:** Dissent by Woodley - **Judges:** Dice, Morrison, Woodley - **Cited by:** 28 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled by Proctor v. State, 1998 Tex. Crim. App. LEXIS 33 (1998). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9648013 ## Opinion text WOODLEY, Judge, dissenting. The indictment herein, returned by a grand jury of Duval County on November 4, 1955, alleges that George B. Parr, D. C. Chapa, B. F. Donald, Jr. (appellant herein), Givens A. Parr and persons unknown to the grand jury entered into a conspiracy and agreed together to unlawfully and fraudulently take, misapply and convert to their own use $1000 in money belonging to the Benavides Independent School District of Duval County. The conspiracy was alleged to have been entered into on or about September 1, 1951. The statute of limitations applicable to the offense here charged is Art. 180 C.C.P., which provides that an indictment *256 may be presented “within three years from the commission of the offense.” Art. 183 V.A.C.C.P. (as amended in 1941) reads: “1. The time during which the accused is absent from the State shall not be computed in the period of limitation. “2. The time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation. “3. The term ‘during the pendency,’ as used herein, means that period of time beginning with the day the indictment, information, or complaint is filed in a court of competent jurisdiction and ending with the day such accusation is, by an order of a trial court having jurisdiction thereof, determined to be invalid for any reason.” The indictment herein was returned while the state’s motion for rehearing in Adame v. State, 162 Texas Cr. Rep. 178 , 283 S.W. 2d 223 , was pending in this court and it was not until March 28, 1956, that a prior indictment against the same named defendants and others, with like allegations, was by “an order of a trial court having jurisdiction thereof determined to be invalid for any reason.” Under the circumstances the state could have alleged only that the persons charged had been previously indicted for the same offense (not that the prior indictment had been determined to be invalid by an order of a trial court or any other court, for that had not yet occurred). Both cases against appellant finally reached the district court of Comal County where the distinguished judge of that court entered the order dismissing the prior indictment because of the holding of this court in Adame v. State, supra. The same judge later presided at the trial upon the present indictment. There would be no question as to the soundness of the majority view that the indictment upon its face was fatally defective if, under the laws of this state, the offense was in fact barred by limitation. Looking alone to Art. 180 V.A.C.C.P. the indictment, having been presented more than three years after the date the offense was alleged to have been committed, was invalid. But, as appellant agrees, Art. 183 V.A.C.C.P. provides an *257 exception to the general rule reflected by Art. 396 C.C.P., and in determining whether the offense charged, if committed upon the date alleged in the indictment, is barred “the time during the pendency of an indictment shall not be computed.” The controlling legal question here presented is: “Is it essential that the indictment allege facts to bring a case which is prima facie barred under a statute of limitations within a statutory exception tolling the statute in certain circumstances?” 27 American Jurisprudence 637, is authority for the statement that there is a diversity of opinion on this question, some courts holding such allegation is essential while others, among them the Federal courts, take the opposite view. There is no case decided by this court, or its predecessors, which has been cited or which I have been able to find holding that it is essential that the indictment allege the facts as to the defendant’s absence from the state, or as to the pendency of a prior indictment tolling limitation under Art. 183 C.C.P., before or after its amendment. One early case is found dealing with the tolling of limitation under what is now Section 1 of Art. 183 V.A.C.C.P. Whitaker v. State, 12 C.A. 436, was a murder case, for which offense an indictment may be presented at any time. The indictment against Whitaker was returned in September 1879, the homicide having been committed some six years before. There was evidence to show that immediately after the killing Whitaker left the county, and after that was absent from the state and in the state of Missouri until some time after the indictment was returned. The misdemeanor offense of negligent homicide was submitted in the court’s charge and the jurors were instructed that if they found Whitaker guilty of that offense they would acquit him, as that offense was barred by limitation. Citing the provision of present Section 1 of Art. 183 V.A.C. C.P., to the effect that the time during which a person accused of an offense is absent from the state shall not be computed in the period of limitation, the court of appeals said that the question of whether negligent homicide was barred by limitation should have been submitted to the jury, and that the court’s instruction, assuming that it was barred, was error and upon the weight of the evidence. *258 The absence of an allegation in the indictment to that effect did not prevent the court of appeals from reversing the conviction because the trial court failed to take into account the defendant’s absence from the state which fact (not alleged) tolled the statute applicable to the lesser included offense. The Whitaker case may be distinguished by the fact that there was no motion to quash the indictment. There is one and only one prior decision of this court construing Sections 2 and 3 of Art. 183 C.C.P. That case is Hill v. State, 146 Texas Cr. Rep. 333 , 171 S.W. 2d 880 , cited by appellant upon another defense contention which the majority has not sustained, and which cannot be distinguished. The Hill case was decided soon after Art. 183 C.C.P. was amended by the addition of Sections 2 and 3 tolling limitation during the pendency of a prior indictment which had been found to be invalid. Hill had been convicted of rape and assessed the death penalty, and the Supreme Court of the United States had set aside the conviction because of racial discrimination in the selection of the grand jury. (Hill v. State, 157 S.W. 2d 369 ; Hill v. Texas, 316 U.S. 400 ; 62 Sup. Ct. 1159; 86 L. Ed. 1559 .) Thereafter, but within one year period of limitation provided for the offense of rape, the legislature amended Art. 183 C.C.P. by adding Sections 2 and 3. A second indictment was returned against Hill (more than one year after the date of the offense) on October 22, 1942, and alleged (as did the prior indictment held invalid) the rape of the named female on December 1, 1940. The second indictment in the Hill case, like the indictment before us, contained no allegation showing that a prior indictment had been returned and, except for the pendency of the prior indictment, the offense was barred by lapse of time. Art. 178 C.C.P. Th opinion in the Hill case affirming a death penalty under the second indictment is devoted to the questions of whether the amendment of the statute after the first conviction had been set aside was available, and whether the prior indictment tolled the statute. An examination of the motion to quash the indict *259 ment in that case removes any doubt but that the legal contention here presented was before this court and the view sustained by the majority in the instant case was rejected. Here are the grounds quoted from the respective motions attacking the indictments: (Appellant Donald and his co-indictees, in their motion to quash) “(b) because it appears from the face of each count of the indictment that a prosecution for the offense herein charged against the defendant is barred by lapse of time.” (Hill’s attack upon the second indictment) “(2) because it appears from the face of the indictment that a prosecution for the the offense is barred by lapse of time.” It is apparent that if the indictment against Hill was sufficient against the identical attack, the present indictment is not fatally defective. Let it be clearly understood that the majority of the members of this court, if not all, do not uphold appellant’s contention that the prior indictment if properly alleged, is insufficient to toll limitation under Art. 183, Secs. 2 and 3, V.A.C.C.P. The majority, if not all of the members of this court, hold that the conspiracy is not in fact barred by limitation and a prosecution may be had upon an indictment properly alleging the facts as to the pendency of the prior indictment as well as the indictment upon which this prosecution was had. The legal question before us decided either way would do no violence to the rights of an accused, or place undue burden on the state. But the change of position by this court after the Hill case was decided is unfair to the state. The offense was not barred by limitation under Art. 180 C.C.P. because the legislature has provided an exception in Art. 183 C.C.P. whereby calendar time is not the sole method by which the question of limitation is to be determined and the time during the pendency of an indictment “shall not be computed.” The theory of judicial knowledge is relevant where the statute of limitation is tolled by the pendency of a prior indictment. *260 It has no application where absence from the state is relied upon to toll limitation, as in Whitaker v. State, supra. Roquemore v. State, 111 Texas Cr. Rep. 77 , 11 S.W. 2d 316 , cited in the majority opinion, holds that the trial court would have judicial knowledge of the contents of the records of the court, including indictments. The statement from Roquemore v. State seized upon by the majority is: “* * * but where there was a mere indictment, he would not have judicial knowledge of the identity of the parties or the transaction.” The condition quoted has no application here for there was no “mere indictment.” Both the indictment returned in 1954 and the indictment under which this appellant was found guilty alleged the same conspiracy to misapply funds belonging to the Benavides Independent School District of Duval County on or about September 1, 1951. Both indictments allege that D. C. Chapa was and would be tax assessor and collector of said school district; that B. F. Donald, Jr. was and would continue to be cashier of the Texas State Bank of Alice; and that under the conspiracy B. F. Donald, Jr. would misapply and convert funds belonging to the school district coming into possession of said bank which was the depository for the Benavides Independent School District funds. If the trial court could take judicial knowledge of the prior indictment surely he could take notice of the fact that there was but one B. F. Donald, Jr. who was cashier of the Texas State Bank of Alice (the depository for the School District) at the time mentioned in the indictment! Just how a defendant could be benefited by allegation and proof before the jury of the indisputable fact that two or three grand juries, and not just one, had indicted him for the same offense for which he is on trial is not apparent. Certainly it was not an element of th offense and proof that he has been previously indicted is ordinarily deemed harmful to the defendant. It is pointed out in this connection that no evidence was admitted upon the trial which would not have been admissible upon a trial under the previous indictment. *261 It should further be noted that the court’s charge herein made no mention of a prior indictment and required the jury, in order to convict, to find that the conspiracy alleged was entered into by appellant and one or more of the alleged co-conspirators, and also that within three years before the return of the indictment some act was done by a party to the conspiracy that was within the contemplation of the parties and the scope of the conspiracy, which act was intended by the conspirators. The offense charged in the indictment was the conspiracy and the acts done in pursuance of the agreement were but evidence to prove that the conspiracy was entered into, renewed and continued. There was evidence to sustain a finding that less than three years before the indictment herein was returned more than $1700 was drawn from funds of the “Benavides Independent School District Freer Local Maintenance” by false vouchers purporting to be for supplies which were not purchased, as well as numerous similar thefts of school funds during the years 1949 to 1953 inclusive. I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9648013. Public record. Not legal advice.