Wallace v. State

Court of Criminal Appeals of Texas

Wallace v. State

138 S.W.2d 116, 138 Tex. Crim. 625, 1940 Tex. Crim. App. LEXIS 179

CourtCourt of Criminal Appeals of Texas

DecidedFebruary 14, 1940

DocketNo. 20725.

StatusPublished

Cited by8 cases

This text of 138 S.W.2d 116 (Wallace 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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Wallace v. State, 138 S.W.2d 116, 138 Tex. Crim. 625, 1940 Tex. Crim. App. LEXIS 179 (Tex. 1940).

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Opinions

The offense is burglary. The punishment assessed is confinement in the state penitentiary for a term of three years.

It appears from the record that this Court has not acquired jurisdiction because of a defective appeal bond. The record shows that at the time the indictment was returned by the grand jury, the Hon. Walter G. Russel was the regularly qualified and acting judge of the 7th Judicial District. That Bascom Gist was the District Attorney in and for said district. That at the trial, Judge B. W. Patterson presided instead of Judge Russel. Just why Judge Patterson was called upon to preside *Page 627 does not appear from the record. However, after the trial, Bascom Gist, the district attorney, was duly appointed judge of said district.

It appears that the appeal bond is approved by the sheriff of Smith County and Judge Gist. We do not think that Judge Gist could legally approve the bond, since he had been an attorney in the case and his act would involve the exercise of judicial discretion. He had to hear evidence as to the solvency of the sureties, what property they had in excess of that exempted from forced sale, its value, etc. If this act had been merely ministerial, a different question might have been presented. See Art. 5, Sec. 11 of the Texas Constitution; 25 Texas Juris., p. 301; Taylor v. State, 81 Tex.Crim. Rep.; Patterson v. State, 83 Tex.Crim. Rep.; Wells v. State, 68 Tex. Crim. 277,150 S.W. 1163; Arts, 818, 268, 271 and 272 C. C. P.; Ex Parte Williams, 116 Tex.Crim. Rep.. This leaves the appeal bond signed only by the sheriff and this is not sufficient. See Perkins v. State, 298 S.W. 577; Gonzales v. State, 298 S.W. 893; Lamar v. State, 40 S.W.2d , 162; Harlan v. State, 32 S.W.2d 184.

From what has been said it follows that the appeal in this case must be dismissed and it is so ordered.

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

ON APPELLANT'S MOTION TO REINSTATE APPEAL.

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The offense is burglary. The punishment assessed is confinement in the state penitentiary for a term of three years.

It appears from the record that this Court has not acquired jurisdiction because of a defective appeal bond. The record shows that at the time the indictment was returned by the grand jury, the Hon. Walter G. Russel was the regularly qualified and acting judge of the 7th Judicial District. That Bascom Gist was the District Attorney in and for said district. That at the trial, Judge B. W. Patterson presided instead of Judge Russel. Just why Judge Patterson was called upon to preside *Page 627 does not appear from the record. However, after the trial, Bascom Gist, the district attorney, was duly appointed judge of said district.

It appears that the appeal bond is approved by the sheriff of Smith County and Judge Gist. We do not think that Judge Gist could legally approve the bond, since he had been an attorney in the case and his act would involve the exercise of judicial discretion. He had to hear evidence as to the solvency of the sureties, what property they had in excess of that exempted from forced sale, its value, etc. If this act had been merely ministerial, a different question might have been presented. See Art. 5, Sec. 11 of the Texas Constitution; 25 Texas Juris., p. 301; Taylor v. State, 81 Tex.Crim. Rep.; Patterson v. State, 83 Tex.Crim. Rep.; Wells v. State, 68 Tex. Crim. 277,150 S.W. 1163; Arts, 818, 268, 271 and 272 C. C. P.; Ex Parte Williams, 116 Tex.Crim. Rep.. This leaves the appeal bond signed only by the sheriff and this is not sufficient. See Perkins v. State, 298 S.W. 577; Gonzales v. State, 298 S.W. 893; Lamar v. State, 40 S.W.2d , 162; Harlan v. State, 32 S.W.2d 184.

From what has been said it follows that the appeal in this case must be dismissed and it is so ordered.

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

ON APPELLANT'S MOTION TO REINSTATE APPEAL.

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138 S.W.2d 116, 138 Tex. Crim. 625, 1940 Tex. Crim. App. LEXIS 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wallace-v-state-texcrimapp-1940.

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