Donald v. State

WOODLEY, Judge,

dissenting, on State’s Motion For Rehearing :

The holding in Hickman v. State, 44 Texas Cr. Rep. 533 , 72 S.W. 587 , from which the majority quote, was before us when this appeal was being considered on original submission. While it was not cited, the original opinion quoted the rule which Texas Jurisprudence derived from the Hickman case: “The State is not bound to anticipate or negative defenses on the part of the accused, but if the pleading shows on its face that the prosecution is barred by the statute of limitations, facts should be alleged which avoid the statute.” 23 Texas Jur. Sec. 30, p. 630.

*264 This rule is relied upon by the majority though the qualifying rule found in the same Section 30 of Texas Jurisprudence, Vol. 23, strongly urged upon us by the state on rehearing, is ignored. “Presumptions of law and MATTERS OF WHICH JUDICIAL NOTICE IS TAKEN NEED NOT BE AVERRED.” 23 Texas Jur., Sec. 30, pp. 630-631.

The Hickman case was decided when we had no statute tolling limitation by reason of a prior indictment. The missing allegation was one that would explain the repugnance between the date of the instrument (1892) and the allegation that it was forged in 1902. It was not an allegation showing that limitation was tolled but one which would clearly show that the limitation did not begin to run in 1892.

The Hickman case merely applied the rule recognized by this court as late as the recent cases of Hodge v. State, 164 Texas Cr. Rep. 69 , 297 S.W. 2d 138 , decided this year, and Dixon v. State, 161 Texas Cr. Rep. 626 , 279 S.W. 2d 868 .

The state’s contention, with which I agree, is that this rule has no application where limitation is tolled under Sections 2 and 3 of Art. 183 V.A.C.C.P., as this court held in Hill v. State, 146 Texas Cr. Rep. 333 , 171 S.W. 2d 880 . One reason this is true is because the court judicially knew that the prior indictment had tolled limitation.

The question presented on rehearing is whether or not the pendency of the prior indictment which had been returned against appellant in the same court, and which was disposed of while the indictment herein was pending in the same judicial district to which both had been transferred by change of venue, was a matter of which the trial court could take judicial knowledge. If so, under the rule relied upon by the majority, it was not necessary that the facts in regard to the pendency of the prior indictment be alleged in the subsequent indictment.

The state directs attention to another rule from Texas Jurisprudence which is pertinent in this regard: “In criminal cases the judge takes judicial notice of his own proceedings and records, and of judgments entered in his court. He may and should take notice of the fact that a witness or the defendant has previously been convicted of a felony in his court, of the pending in the same court of a complaint against a witness for the same offense with which the defendant is charged, or of the contents of an indictment in another case against the defendant *265 before it, whether a former conviction of the defendant in the same court was for the same offense with which he is charged, and that a former conviction has been appealed from.” 17 Texas Jur. 204-5, Sec. 28.

One further authority may be cited in answer to the majority holding that the trial judge could not take judicial notice regarding appellant’s identity as being the defendant in the prior indictment.

In Armstrong v. State, 120 Texas Cr. Rep. 526 , 46 S.W. 2d 987 , we held that if in a habeas corpus proceeding knowledge came to the judge from which he knew that the “Weatherby” under indictment was the same man called as a venireman in the case on trial, he could take notice of that fact and act upon it.

Judge Fuchs, the trial judge, the transcript shows, changed the venue in the prior case and appellant entered into recognizance before him for his appearance in another court of the same judicial district. The Armstrong case would appear to be authority for holding that Judge Fuchs correctly took judicial notice that the defendant in that case (which he later dismissed) was the defendant in the case from which this appeal is prosecuted.

It is quite true that the question presented on this appeal is not one of first impression. As I have attempted to demonstrate, this court, in Hill v. State, 146 Texas Cr. Rep. 333 , 171 S.W. 2d 880 , held that the offense of rape was not barred by limitation by reason of Art. 183 V.A.C.C.P., though the indictment was returned on October 16, 1942, and “the offense of rape is alleged to have been committed in Dallas County, Texas, on the 1st day of December, 1940.” The opinion in the Hill case reveals the following:

The appeal was from a death sentence for rape. The case had been before this court on a former appeal (Hill v. State, 144 Texas Cr. Rep. 415 , 157 S.W. 2d 369 ). The Supreme Court of the United States reversed the case. Subsequently Hill was reindicted “in the manner hereinafter fully stated and the trial was had on the second indictment. A motion to quash the second indictment was timely filed.” (I have directed attention to the fact that the original papers in the case reveal that one ground of this motion was the identical ground now sustained by the majority.)

*266 “The offense of rape is alleged to have been committed in Dallas County, Texas, on the 1st day of December, 1940.” Within a few days Hill was indicted.

The act amending Art.. 183 C.C.P. so as to provide that the time during the pendency of an indictment should not be computed in the period of limitation and defining the term “during the pendency” became effective on July 9, 1941.

The conviction under the first indictment was reversed by the Supreme Court of the United States on June 1, 1942.

On October 16, 1942, approximately a year and eight months after the commission of the offense of rape alleged, the indictment upon which Hill was tried and sentenced to death the second time was returned.

The court, speaking through Judge Beauchamp, said:

“The amount of time between the commission of the offense and the first indictment, added to the period from June 1, 1942, (date of reversal of the first conviction) to October 16, 1942, (the date the second indictment was presented) is much less than one year. Under the terms of the amendment above quoted (Sections 2 and 3 of Art. 183 V.A.C.C.P.) th,e period of limitation would not be available to appellant as a bar to prosecution.”

One need not resort to the record showing the ground for the motion to quash the indictment (identical with that before us on this appeal) nor examine the indictment (which contains no allegation regarding the pendency of the prior indictment). The opinion itself shows that the rule now relied upon by the majority has no application because of the prior indictment and of Art. 183 C.C.P. as amended. (Art. 183 V.A.C.C.P., Sections 2 and 3.)

The question before us is not what the rule is as applied tto a first indictment, but whether, since the trial judge judicially knew that there was a prior indictment during- the pendency of which limitation was tolled, the second or subsequent indictment is fatally defective which fails to allege facts showing the pendency of the prior indictment.

What I believe to be the fallacy of the majority view is that Art. 183 C.C.P. is not accorded the same equal weight and authority as is given to Art. 180 C.C.P.

*267 As I see it, these statutes are of equal dignity and should be construed together as though the legislature had amended Art. 180 C.C.P. (and similarly all other limitation statutes in the code) so that Arts. 180 and 183 V.A.C.C.P., insofar as here applicable, should together read:

An indictment for any other felony may be presented within three years from the commission of the offense and not after-wards, (except murder, for which an indictment may be presented at any time) but in computing such three-year-period there shall be excluded the period of time beginning with the day an indictment was 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.

Construing the applicable statutes together and giving equal weight to each, I cannot agree with the majority holding that the indictment is fatally defective for failure to allege facts showing that three years calendar time had not barred the prosecution under the provisions of one of them.