Pittman v. State

310 S.W.2d 103, 165 Tex. Crim. 569, 1958 Tex. Crim. App. LEXIS 3994

• Court: Court of Criminal Appeals of Texas
• Decided: February 12, 1958
• Docket: No. 29,524
• Status: Published

Opinions

BELCHER, Judge.

The indictment herein alleges that appellant, in and upon the person of Newell McGruder, “did use force, threats and violence by striking and beating with his hands, and kicking and stamping with his feet the said Newell McGruder, and in doing so prevented and attempted to prevent the said Newell McGruder from engaging in a lawful vocation at the Swift and Company, 2300 Cockrell Street, Dallas, Texas.”

Upon order of the judge of Criminal District Court No. 3, wherein the indictment was returned, reciting that from an inspection of the indictment the case was a misdemeanor, it was transferred to County Criminal Court No. 3 of Dallas County.

Trial was had and, the case being submitted to the jury upon a charge defining the offense as in Art. 1146, Vernon’s A.P.C. and submitting the punishment provided in that article, appellant was found guilty as charged in the indictment and his punishment was assessed at six months in jail.

The judgment entered sets out the jury’s verdict and orders his confinement for six months and until the costs are paid, but does not adjudge appellant guilty or name the offense. However, the word “intimidation” appears in the heading of the judgment.

Art. 1146, Vernon’s A.P.C., enacted in 1887, provides:

“Any person who shall by threatening words or acts of violence or intimidation prevent or attempt to prevent another from engaging or remaining in or from performing the duties of any lawful employment shall be fined not less than twenty-five nor more than five hundred dollars, or be confined not less than one nor more than six months in jail.”

Article 1621b, Vernon’s A.P.C., enacted in 1941, (Acts 47th Legislature, p. 128) provides in Section 1:

“It shall be unlawful for any person by the use of force or violence, or threat of the use of force or violence, to prevent or attempt to prevent any person from engaging in any lawful vocation within this State.”

This punishment for violation is fixed in the same section of Art. 1621b, at confinement in the penitentiary for not less than one year nor more than two years.

Section 4 of said statute provides that its provisions shall be cumulative of all other existing articles of the Penal Code upon the same subject, and in the event of a conflict between existing articles and the provisions of this Act, then and in that event the provisions, offenses and punishments herein set forth shall prevail over such existing statutes.

We are first met with the question of whether or not the facts alleged in the indictment, assuming that they charge the offense defined in Art. 1146, also charge a violation of Art. 1621b; in other words, as applied to the facts alleged, do Art. 1146 and Art. 1621b, Sec. 1, define the same offense? If so they are in conflict in that a different punishment is provided for the same criminal act, and both cannot stand.

If they are in conflict and both cannot stand, then the provisions of Sec. 4 of Art. 1621b, as well as the fact that Art. 1621b is the latest expression of the legislature, require that the older statute yield. “In the event of a conflict between existing articles of the Penal Code and the provisions of this act, then and in that) event * * * * * punishments herein set forth shall prevail over such existing statutes.” Art. 1621b, Sec. 4, Vernon’s A.P.C.

The conclusion is inescapable that the acts charged in the indictment allege a violation of Section 1 of Art. 1621b, Vernon’s A.P.C. as well as Art. 1146, Vernon’s A.P.C., and that the punishment now applicable to such offense is that provided in Section 1 of Article 1621b, Vernon’s A.P.C.

The indictment alleging a felony offense, the County Criminal Court No. 3 of Dallas County was without jurisdiction.

The judgment is reversed and the cause remanded to the trial court with instructions to transfer it back to Criminal District Court No. 3, of Dallas County.

Opinion approved by the Court.