Rutherford v. State

Court of Criminal Appeals of Texas

Rutherford v. State

121 S.W.2d 342, 135 Tex. Crim. 530, 1938 Tex. Crim. App. LEXIS 804

CourtCourt of Criminal Appeals of Texas

DecidedJune 22, 1938

DocketNo. 19763.

StatusPublished

Cited by21 cases

This text of 121 S.W.2d 342 (Rutherford v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rutherford v. State, 121 S.W.2d 342, 135 Tex. Crim. 530, 1938 Tex. Crim. App. LEXIS 804 (Tex. 1938).

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Christian, Judge.

The offense is burglary; the punishment, confinement in the penitentiary for twelve years.

The indictment embraced averments showing that prior to the commission of the present offense appellant had been convicted in the State of California of the offense of burglary.

The testimony on the part of the State was uncontroverted to the effect that on the 9th of September, 1937, appellant burglariously entered a hotel room occupied by O. T. Nicholson. Further, the proof showed that appellant had theretofore been convicted in the State of California of the offense of burglary.

In the order overruling the motion for new trial the court granted appellant sixty days after the adjournment of court to file his bills of exception. The trial term was adjourned December 18, 1937. The bills of exception were filed on February 23, 1938, which was 67 days after the date of adjournment. This was too late, and, under the circumstances, we are not warranted in considering said bills.

*532 Appellant contends that the evidence is insufficient to identify him as the person who had been convicted in the State of California of the offense of burglary. We are unable to agree with this contention. The State introduced as a witness Lester M. Jones, who was a fingerprint expert connected with the sheriff’s office in the city of Los Angeles. He testified: “I remember this defendant by the name of Clark. I had occasion to take his fingerprints myself. I have the fingerprints I took. * * * I would have to refer to the records as to the exact date when I took the fingerprints of this defendant, but I remember the incident real well.” After examining his records the witness said: “I took his fingerprints on the evening of November 23, 1929. ” After producing his original records which he himself had made, the witness stated that in addition to his identification of appellant from memory, he had in his own handwriting the original records showing the physical description of appellant, including a certain scar. He testified further that his examination of the appellant disclosed him to be the person who had been convicted in California. Further, the witness testified that he had checked the original fingerprints of appellant he had taken in California against fingerprints taken by a fingerprint expert in El Paso and that they were the prints of the same person. We quote further from his testimony: “When I originally fingerprinted him he was charged with a felony and I followed it through my records to see whether the defendant was convicted or found guilty. * * * Yes, I followed the case against this defendant through and I know that he was convicted, sentenced and was later a parole violator from San Quentin in San Francisco on that charge.” Also the witness identified a copy of the records from the clerk’s office in Los Angeles, California, showing the conviction of George Clark for burglary. On this point he testified: “The man [George Clark] was sentenced and served a time for this. Yes, this is the correct copy of the judgment sentencing him; the commitment is there.”

We deem the testimony of the witness sufficient to support the averment in the indictment that on the 13th of February, 1930, appellant had been convicted in the Superior Court of the County of Los Angeles, State of California, of the offense of burglary.

The judgment is affirmed.

The foregoing opinion of the Commission of Appeals has *533 been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

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Christian, Judge.

The offense is burglary; the punishment, confinement in the penitentiary for twelve years.

The indictment embraced averments showing that prior to the commission of the present offense appellant had been convicted in the State of California of the offense of burglary.

The testimony on the part of the State was uncontroverted to the effect that on the 9th of September, 1937, appellant burglariously entered a hotel room occupied by O. T. Nicholson. Further, the proof showed that appellant had theretofore been convicted in the State of California of the offense of burglary.

In the order overruling the motion for new trial the court granted appellant sixty days after the adjournment of court to file his bills of exception. The trial term was adjourned December 18, 1937. The bills of exception were filed on February 23, 1938, which was 67 days after the date of adjournment. This was too late, and, under the circumstances, we are not warranted in considering said bills.

*532 Appellant contends that the evidence is insufficient to identify him as the person who had been convicted in the State of California of the offense of burglary. We are unable to agree with this contention. The State introduced as a witness Lester M. Jones, who was a fingerprint expert connected with the sheriff’s office in the city of Los Angeles. He testified: “I remember this defendant by the name of Clark. I had occasion to take his fingerprints myself. I have the fingerprints I took. * * * I would have to refer to the records as to the exact date when I took the fingerprints of this defendant, but I remember the incident real well.” After examining his records the witness said: “I took his fingerprints on the evening of November 23, 1929. ” After producing his original records which he himself had made, the witness stated that in addition to his identification of appellant from memory, he had in his own handwriting the original records showing the physical description of appellant, including a certain scar. He testified further that his examination of the appellant disclosed him to be the person who had been convicted in California. Further, the witness testified that he had checked the original fingerprints of appellant he had taken in California against fingerprints taken by a fingerprint expert in El Paso and that they were the prints of the same person. We quote further from his testimony: “When I originally fingerprinted him he was charged with a felony and I followed it through my records to see whether the defendant was convicted or found guilty. * * * Yes, I followed the case against this defendant through and I know that he was convicted, sentenced and was later a parole violator from San Quentin in San Francisco on that charge.” Also the witness identified a copy of the records from the clerk’s office in Los Angeles, California, showing the conviction of George Clark for burglary. On this point he testified: “The man [George Clark] was sentenced and served a time for this. Yes, this is the correct copy of the judgment sentencing him; the commitment is there.”

We deem the testimony of the witness sufficient to support the averment in the indictment that on the 13th of February, 1930, appellant had been convicted in the Superior Court of the County of Los Angeles, State of California, of the offense of burglary.

The judgment is affirmed.

The foregoing opinion of the Commission of Appeals has *533 been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

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121 S.W.2d 342, 135 Tex. Crim. 530, 1938 Tex. Crim. App. LEXIS 804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rutherford-v-state-texcrimapp-1938.

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