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SUPREME COURT RECORDS PAGE
17
File contributed by Lisa Lach and
proofed/formated by Dena Stripling *1 While the application for continuance stated
that the defendant could prove by three women that he won the coat which he is charged
with stealing from another freedman on the day, etc. (see statement), the showing is
not a compliance with the code. Pas. Dig. art. 2987. On the first application, if the
statute be complied with, a continuance is granted, of course. When not in accordance with the statute, it is
addressed to the sound discretion of the court. Where the property was stolen, and the party was
found in possession of it three hours afterwards, he is, prima facie, guilty, and
unless there be proof to rebut this presumption, the verdict will not be disturbed. APPEAL from Bastrop. The case was tried before
Hon. JOHN IRELAND, one of the district judges. The defendant was indicted for stealing a coat.
He moved for a continuance, and on the ground that he was almost a total stranger in
that community; that he had beea in the county but a few days before he was arrested in
this case; that he had been confined in the county jail ever since he was accused of
the charge; that he could prove by three women of color that he won the coat which
he is charged with stealing from another freedman, on the day and about one hour
before he was arrested, etc.; that, being a stranger, and having no friends or
relatives in the county, he had not been able to learn the names of the three freedmen;
that he could prove that he came honestly by the coat; expected to procure the
attendance of such witnesses, etc. The motion was overruled, but the point does hot
seem to have been saved by bill of exceptions. It was proved that the coat
stolen was worth $30; that the accused was fo!lowed, and the coat found upon his
person; that he said he had won the coat behind the livery stable with cards; but that he
had ruade contradictory statements as fo where he said he had won it. The charge of the court was in accordance with
the statute. The defendant was found guilty, and his punishment assessed at two years
in the penitentiary. He moved for a new trial, which was overruled, and he appealed. It is error to refuse an application for a first
continuance on defendant's compliance with the statutory requirements therefor. The granting of a continuance on the ground of
the absence of witnesses, when the application is based upon causes not
contemplated in the statute, rests in the discretion of the court in view of all the
facts. An application for a continuance on the ground
of the absence of witnesses, by a defendant charged with the larceny of a coat,
stating that "he can prove by three women that he won the coat from another
freedman, on the day, and about an hour before, he was arrested; that, being a stranger,
and having no friends or relatives in the county, he had not been able to learn the
names of the three women, but expected to procure the attendance of such
witnesses,"-does not comply with Pasch. Dig. art. 2987, requiring a first application
for continuance on such ground to state the name of the witness and his residence,
if known, or that his residence is unknown; the diligence which has been used to
procure his attendance; the facts which are expected to be proved; that the
witness is not absent by the procurement of the defendant; and that the application is
not made for delay. If the court is satisfied of the relevancy of
the evidence of absent witnesses set up for a continuance, it should, on motion,
grant a new trial. A. D. McGinnis, for the appellant, insisted that
the motion for continuance was improperly overruled, and that the defendant was
wrongfully convicted. William Alexander, Attorney General, for the
state. CALDWELL, J. *2 We see no error in the record. The indictment
is unobjectionable, and charges the offense in the language of the statute. The
application for a continuance states, that "he (defendant) can prove by
three women that he won the coat he is charged with stealing from another freedman, on
the day and about an hour before he was arrested;" and that the names and
residence of witnesses are unknown. This does not comply with the statute (Pas. Dig.
art. 2987), and is addressed to the discretion of the court. An application for
a first continuance, in the terres of the law, relieves thc court of its
discretion, and the continuance is granted as of course. Not so when the application is
based upon causes not contempiated in the statute. Then the discretion of the court is
invoked in view of ail the facts. After trial and conviction, with a full
knowledge of all the evidence, the court is better prepared to judge of the relevancy of the
cause set up for a continuance, and, if satisfied that injustice has been done,
upon motion, a new trial ought to be awarded. Cooper v. The State, 19 Tex. 459. The evidence fully sustained the verdict. The
defendant was found in possession of the property within three hours after it was
stolen. This is prima facie evidence of guilt; and, unless there is some proof to
rebut this presumption, the jury were warranted in so finding. There being no error, the judgment of the court
below is Affirmed. Tex. 1867. GEORGE JENKINS v. THE STATE. 30 Tex. 444, 1867 WL 4628 (Tex.) END OF DOCUMENT ============== *1 1. An account rendered by the comptroller of
public accounts against an assessor and collector of taxes, and placed in the hands
of a district attorney for suit, is prima facie correct, and, when offered in
evidence, no testimony to establish it is necessary. Pas. Dig. art. 3707. 2. A district attorney has certain duties and
powers, which are prescribed by the legislature. He is an agent or attorney of
special and limited, and not of general powers. 3. When the comptroller of public accounts has
officially decided that an assessor and collector is in default to the state, and
has furnished a district attorney with an account of the indebtedness of the assessor
and collector to the state, with directions to bring suit therefor, the district
attorney has no power to compromise with the debtor, either before suit is brought,
during its pendency, or after judgment. 4. All citizens are chargeable with notice of
the acts of the legislature, and, among them, of art. 193, Pas. Dig., which invalidates
any admission by a district attorney to the prejudice of the state. ERROR from Bastrop. Tried below before the Hon.
David Sheeks. The state instituted two suits in the district
court of Bastrop county against George Allen, and his sureties, on two official bonds
given by him as assessor and collector of Bastrop county. Consent judgments, amounting
in the two cases to fourteen hundred dollars, were rendered in favor of the state on
an alleged indebtedness, as shown by the comptroller's statements, of some seven
thousand dollars, besides license taxes alleged to have been collected. The grounds on which the rulings of this court
are placed, obviate any necessity of giving details of the cases. The opinion here printed was rendered in one of
the cases. The other was reversed and remanded for the same reasons. A district attorney has certain duties and
powers, which are prescribed by the legislature. He is an agent or attorney of
special and limited, and not of general powers. All citizens are chargeable with notice of
Pasch. Dig. art. 193, which invalidates any admission by a district attorney to the
prejudice of the State. Under the statute, Pasch. Dig. art. 192, which
provides that no admission made by the district attorney, in a suit in which the state
is a party, shall operate to the prejudice of the state, in an action on an account
rendered by the comptroller, the district attorney cannot agree that judgment shall be
rendered for a less sum. A judgment under such an agreement will be set aside. An account rendered by the comptroller of public
accounts against an assessor and collector of taxes, and placed in the hands of a
district attorney for suit, is prima facie correct, and, when offered in evidence, no
testimony to establish it is necessary under Pasch.Dig. art. 3707. E. B. Turner, Attorney General, for the state. Jones & Sayers, for the defendants in error. MORRILL, C. J. *2 The plaintiff sued Allen and sureties as
assessor and collector, claiming a judgment for fifteen thousand dollars, based upon the
account current of Allen and the comptroller of public accounts of the state, as
furnished by the comptroller. Defendants pleaded payments and discounts, etc.
The judgment rendered was as follows, viz.: "Now, on this the 27th day of May, A. D.
1869, came on this cause to be tried, the state of Texas by her district attorney, and the
defendants, Geo. Allen, John Fawcett, O. W. Ship and George Warren, by their attorneys; and
by agreement of parties, it is considered, adjudged and decreed by the court that the state
of Texas do have and recover of and from the defendants, Geo. Allen, John Fawcett,
O. W. Ship and Geo. Warren, the sum of five hundred dollars and all costs of suit, for
which execution may issue." The attorney general has brought the cause to
this court by error, and assigns as error--first, that the judgment was rendered by
agreement, when no person had authority to make any agreement on the part of the state
in the premises. Art. 192 provides "that no admission made
by the district attorney in any suit or action in which the state is a party, shall
operate to prejudice the interest of the state." The account as rendered by the comptroller of
public accounts, and which was placed in the hands of the district attorney for suit,
amounted, as above stated, to fifteen thousand dollars. This account was prima facie
correct, and no testimony was required to substantiate the correctness of it. Art.
3707. It might, therefore, be regarded as proven
before the court that the defendants were indebted to the state in said sum; and had the
district attorney not consented to a judgment of five hundred dollars, as matters
stood when this agreement was made, the state would have recovered three times this
amount. The propriety of the statute is as well
illustrated and substantiated by this transaction as by the one historically known as the cause of
it. A district attorney, as well as every other
officer or agent of the state, has certain prescribed duties to perform. He is an agent or
attorney having a special and limited, and not a general power. The several acts of the
legislature comprise his duties, and designate what he can do, as well as the method
of so doing, and also what he is not permitted to do. An attorney-at-law is supposed
to have an equivalent to a general power of attorney, to do whatever his principal
could do in a case pending in court. Whatever, therefore, is done by an attorney, in
the legal discharge of his duties, is the act of his principal, and is binding. But
a district attorney has no such general power; his powers are limited. When the
comptroller of public accounts has officially decided that an assessor and collector has been
remiss in his duties, and has furnished the district attorney with an account of his
indebtedness, with directions to institute suit thereon, the district attorney has no power
to compromise with the debtor, either before suit is brought, during the pendency of
it, or after judgment. *3 As every citizen is charged with a knowledge
of the public acts of the legislature, the defendant is charged with a knowledge of the
fact that the district attorney had no right to settle the account otherwise than
according to the official statement of the comptroller, and that the agreement made,
whereby the comptroller's account was ignored, was illegal. Judgment is reversed, and cause remanded. Reversed and remanded. Tex. 1869. THE STATE v. GEORGE ALLEN AND OTHERS. 32 Tex. 273, 1869 WL 4814 (Tex.) END OF DOCUMENT == *1 1. Indictment for murder charged that the
fatal wounds were inflicted in the "breast, side, and loins" of the deceased. Held,
that the indictment was sufficient, notwithstanding the omission to state in what particular part of
side, breast, or loins the wounds were inflicted. 2. Indictment for murder charged that the
accused did "feloniously and of his malice aforethought" kill and murder, but nowhere
employs the statutory word ""unlawfully" in charging the killing. Held good, on motion in
arrest of judgment. 3. The jury are the exclusive judges of the
credibility of witnesses, and of the truthfulness or falsity of their statements. APPEAL from Travis. Tried below before the Hon.
J. P. Richardson. The defendant was indicted by the grand jury of
Bastrop county for the murder of William Ward, and the venue changed to Travis
county. The indictment charged that the defendant and
one M. T. Walters, and three other persons unknown to the grand jurors, late of
said county, with force and arms in said county and State, on the 2d day of March,
1871, did then and there willfully, feloniously, and of their malice aforethought,
in and upon the body of William Ward, a reasonable creature in being, make an assault,
and that they, the said M. T. Walters and George Thompson and said three
unknown persons, certain six-shooting pistols then and there charged with gunpowder and leaden
balls, and then and there held in their hands, did then and there feloniously and of
their malice aforethought shoot off and discharge to, at, and against the body of him,
the said William Ward, and with the leaden balls so shot off and discharged as
aforesaid by force of the gunpowder aforesaid, by them, the said Walter and the said Thompson
and the said unknown persons, did then and there feloniously and with their malice
aforethought, assault, strike, penetrate, and wound him, the said Ward, in the breast,
side, and loins of him, the said Ward, giving to him, the said Ward, then and there,
six mortal wounds of the width of one inch and of the depth of six inches each, of
which said mortal wounds so inflicted aforesaid by them, the said Thompson and the
said Walters and the said unknown persons, he, the said Ward, then and there, instantly
died, and so the grand jurors aforesaid upon their oaths aforesaid do say and present
that the said Thompson and the said Walters and the said unknown persons, in the
form and by the means aforesaid, on the day and year aforesaid, in the county and State
aforesaid, then and there feloniously and of their malice aforethought, him, the said
William Ward, did kill and murder, contrary to law and against the peace and
dignity of the State. On the trial of the case the defendant was
convicted of murder in the second degree, and confinement in the penitentiary for ten
years was assessed as his punishment. Defendant moved for a new trial on the grounds
of newly- discovered evidence, and the error of the court in informing the jury
verbally in open court that they could find the defendant guilty of murder in the second
degree, after the charge of the court had been given them and before they had returned
a verdict. *2 The motion for a new trial being overruled,
defendant moved in arrest of judgment, because the indictment did not charge that the
defendant unlawfully made an assault upon William Ward; because the indictment did
not charge that the defendant did unlawfully kill and murder the said Ward;
because the indictment did not charge that the defendant did willfully kill and murder
the said Ward. The motion in arrest of judgment was overruled,
and defendant gave notice of appeal. = The jury are the exclusive judges of the
credibility of witnesses, and of the truthfulness or falsity of their statements. An indictment for murder, alleging that
defendants at a certain time and place feloniously, willfully, and of their malice aforethought
killed and murdered deceased, is sufficient, without an averment that the killing was
unlawful. Jones & Sayers, for the appellant. The
seventh assignment of errors raises the question as to the sufficiency of the indictment. In the
consideration of this feature of the case, it will be necessary to institute a comparison
between the bill of indictment and the statute under which it was found. (Article 2266,
Criminal Code, Paschal's Digest.) The statute, it will be observed, uses the word
"unlawfully," and also the phrase "malice aforethought." As it would not be proper to
charge the Legislature with the grammatical impropriety of tautological expressions, it
cannot be well maintained that it was intended that the word and the phrase above
quoted should be considered as synonymous in meaning. Representing, as they most certainly
do, prominent ideas in the statutory definition of "murder," they,
undoubtedly, have not only a different signification, but become "terms of art"--thereby
creating a necessity for their use in every properly drawn indictment for murder. The pleader has wholly
failed to employ the word "unlawfully," in framing the indictment, which, for that reason,
is fatally defective. But it may be contended that, being drawn under the form
prescribed by the common law, the indictment will support a conviction. To this we reply,
that, viewed in that light, the indictment is bad, in not charging the appellant with
"willfully" committing the assault and killing. That the omission of the word
"willfully" is fatal, see Archbold's Criminal Pleading, Vol. II., 213-1. It will be remembered that, as if to provide
against any confusion of the different degrees of homicide, the statute, in Article
2267 of our criminal code (Paschal's Digest), makes a further distinction. Now, is not the
defendant entitled to full and explicit information as to the degree of the offense to
which he is called to answer? It will not do to say that the word
"feloniously" sufficiently indicates the gravity of the offense, because manslaughter is no less a
felony than murder. Nor that the term "malice aforethought" covers the idea,
for it only represents the intention (Beauchamp v. State, 6 Blackf., 300), and the intention is
an essential requisite in every grade of killing. We, therefore, respectfully submit
that, inasmuch as the indictment lacks that sufficiency and particularity necessary to
advise the appellant of the charge which he was to meet, it is bad, and should have been so
held by the court below. *3 But, further, the indictment does not show in
what part of the body, and in which side and breast, the wounds were inflicted, nor in
which hand the weapon was held. (2 Hale, 185; Archbold's Criminal Pleadings, 384, 405.)
These objections may appear somewhat technical, but are none the less deserving of
consideration. Surely, it cannot be considered an over refinement in criminal
pleading, to require the State to put forth her accusation in such form and language as to
fully apprise the defendant of the exact crime with which he stands charged, that
he may be enabled to make good his defense. W. P. Bacon, also for the appellant. William Alexander, Attorney-General, for the
State. The motion in arrest of judgment sets up substantially three objections to the
indictment; that it does not charge the assault and the killing to have been done
unlawfully-- that it does not charge the killing to have been done willfully--and, that
it does not charge the defendant individually with assaulting and killing, but charges
defendant, M. T. Walters, and three unknown persons did so. Dismissing the last as having in it little or no
merit, it may be said in reply to the two first, that, "one object which the
Legislature sought to attain in the adoption of the Code was to dispense with mere formalities,
useless verbiage, and perplexing circumlocutions in the definition of offenses,
and in all the proceedings of the court in the administration of the criminal law."
"We think that the whole spirit of the Codes authorizes the court to dispense with what the
books call 'terms of art' in the description of offenses in indictments, and also
in every part of the indictment; and that even so distinguished a word as
'feloniously' 'DD' (and the learned judge might have added, the equally distinguished words
'unlawfully' and 'willfully') "is no longer to be considered as a sine qua non in the
administration of justice in this State." (Calvin v. State, 25 Texas Rep., 793.) The question is not, whether this, that, or the
other word (even though a statutory word) is found in the indictment, for "it is not
in general necessary, in an indictment for a statutable offense, to follow the exact words
of the statute, substantial accuracy is sufficient" (Drummond v. Republic, 2 Texas
Rep., 157); but, do the words used describe the offense created by the statute? It is not necessary to adduce authority for the
position, that it is not necessary to state in an indictment anything which it is not
necessary to prove; and certainly it is not necessary to allege or prove anything of
a negative character. Tested by these rules, the indictment under
consideration must be considered sufficient. It charges that the defendants "willfully,
feloniously, and of their malice aforethought, did make an assault," etc. An assault is
defined in the Code to be the attempt to use unlawful violence. Is not then this murder,
commencing in assault, charged to have been unlawfully committed, when charged also to
have been done willfully, feloniously and with malice aforethought? *4 And is it necessary, by the express use of
the word "unlawfully," to negative the defense that the killing was lawful, any more
than to negative any other possible defense? And would it be necessary for the State
to prove the killing not to be lawful, or should the defendant prove it to be
lawful? And if the State proves the killing, must she go on to prove that the slayer
was not, for instance, a sheriff, and did not, in the execution of his office,
lawfully kill the deceased? And if it is not proved, need it be alleged? Again, the indictment alleges that the parties
"then and there feloniously and of their malice aforethought him, the said W. W.,
did kill and murder contrary to law, and against the peace and dignity of the
State." As the word "willfully" is not found
in the statutory definition of murder, it is hardly necessary to add anything on that point. OGDEN, J. The record in this case presents evidence of a
peculiar practice, which we are surprised to learn has been resorted to in our
courts of justice when important and grave questions of vital interest to the
people are being determined. Surely such practice is not calculated to aid in the
investigation of truth, or to forward the ends of justice. But we forbear
comment further than may be necessary to decide the questions presented by the appeal. We think the exceptions taken to the indictment
not well founded, and that the court did not err in overruling the same. We have
examined the statement of facts with great care, and are not prepared to say that there was
not sufficient evidence, if true, to warrant the verdict, and the jury should be
the exclusive judges of the credibility of witnesses, and truthfulness or falsity of
their statements. We think the court did not err in refusing a new
trial for the reasons set out in the motion; and finally, we have been unable to
discover any error in the rulings of the court, which would induce us to believe that the
appellant had not had a fair and impartial trial, and certainly the verdict of
the jury was as favorable to the defendant as he had a right to expect under the
testimony. The judgment of the District Court is therefore
affirmed. Affirmed. Tex. 1871. GEORGE THOMPSON v. THE STATE. 36 Tex. 326, 1872 WL 7549 (Tex.) END OF DOCUMENT ===== *1 1. Appeal does not lie from the action of a
district court in overruling a motion for new trial in a criminal case. 2. In this case the jury found the defendant
guilty of rape; thereupon the court remanded the defendant to jail to await
sentence. A motion for new trial was overruled, and an appeal taken. Held, that the
supreme court had no jurisdiction on appeal. 3. Hoppe v. The State, in 32 Tex., overruled. APPEAL from Bastrop. Tried below before the Hon.
J. P. Richardson. The defendant was found guilty of rape. Upon the
return of the verdict, it was ordered by the court that the defendant, Albert
Fulcher, be remanded to the county jail, there to await judgment and sentence. A motion for new trial was overruled, the record
showing, "It is ordered by the court that said motion be and the same is hereby
overruled, to which ruling of the court the defendant did then and there
except, and gave notice in open court of appeal to the supreme court of Texas." Appeal does not lie from a decision of the
district court overruling a motion for new trial, in a criminal case for want of any
final judgment. Thus, where defendant, found guilty of rape, was remanded to await
sentence, and moved for a new trial, which was denied, and he appealed, held, that
the appeal was premature. Jones & Sayers, for appellant. Attorney General, for the state. MCADOO, J. No judgment was rendered on the verdict of the
jury in the court below, in this case, as disclosed by the record. The appeal was
taken, and is prosecuted alone from the action of the district court in overruling the
motion for a new trial. The court uniformly held, in a long line of
decisions, from case of Shultz v. The State, 13 Tex. 401, to Lane v. Ellinger, 32 Tex. 369,
inclusive, that without final judgment, there could be no appeal to this court. The same
rule has been held, both in civil and criminal causes; and, indeed, the rule must be
the same in both classes of cases, as the reason of the rule is the same in both. The
jurisdiction of this court is appellate only, and is only conferred by positive law;
there is no provision of the law which, in any case, gives the right of appeal, except
from judgments rendered against the parties appealing. The rule above laid down, and which was so long
and so consistently maintained by this court, was disregarded and overruled in Hoppe v.
The State, 32 Tex. 389. In the opinion in that case, Mr. Justice Lindsay
says: "We think the import of article 3151 is too clear and palpable to the
understanding to be called in question, that the convict may appeal from such a judgment to this
court." The judgment here referred to is the judgment of the district court overruling
the motion for a new trial. In that case, as in this, there was no judgment rendered
on the verdict of conviction--no judgment except that overruling the motion for a
new trial. *2 This section (3151, Pas. Dig.) certainly
confers no jurisdiction on this court, and it was not intended by the legislative mind to
confer any. It only recognized an exercise of such jurisdiction as is conferred by law; and
this section must be construed in connection and in harmony with the law
conferring jurisdiction. We think the opinion in Hoppe v. The State is
based on a misconception of the true import of the language used in article 3151; and
especially does this so appear when construed in connection with article 3183. The latter
article reads as follows: "An appeal may be taken by the defendant in every case where
judgment of conviction has been rendered against him in the district court," etc. This is the law, and all of the law, which gives
the right of appeal in this class of cases. By its very terms the appeal only lies
from the judgment of conviction "rendered;" not from the judgment
overruling the motion for a new trial; nor from the verdict of the jury; nor from any part of
the proceedings in the case. The very language of article 3183 is its own best
interpretation. What language can be clearer or more conclusive? Now, in view of the language used in article
3183, what is the true intent of article 3151? This latter article reads as follows:
"When, from any cause whatever, a verdict of conviction has been returned, and there is a
failure to enter judgment and pronounce sentence during the term, the judgment may be
entered and sentence pronounced at the next succeeding term of the court, unless a new trial
has been granted, or the judgment arrested, or an appeal has been taken." A proper analysis of the above language clearly
develops this meaning: When, for any cause whatever, after a verdict of conviction
has been returned, there is a failure to enter judgment, the judgment may be entered
at the next succeeding term of the court, unless a new trial has been granted, or the
judgment has been arrested; and if there is a failure to pronounce sentence during the
term, the sentence may be pronounced at the next succeeding term of the court, unless an
appeal has been taken. Had the two failures in the district court,
intended to be cured by that section, been provided for, not in a single section and a
single sentence, but in two distinct sections, as is usual in the provisions of the
code of procedure, the erroneous construction placed by the court on article
3151, in Hoppe v. The State, would have been avoided. For the reasons set out in this opinion we are
satisfied that this court should recede from the ruling in Hoppe v. The State, and
return to the former rulings on the subject of appeals from the district court to this
court. Dismissed. OGDEN, P. J. *3 I concur in the above opinion. The case is
therefore dismissed for want of final judgment. The cases of Smith and Fulcher v. The State,
Nos. 1688 and 1689, will be dismissed, for the reasons set forth in this opinion. WALKER, J., dissenting. It is not my purpose in writing a dissenting
opinion to weaken or unsettle by criticism the opinion of the majority of the court
rendered in this case. The majority of the court have boldly overruled the case of Hoppe v.
The State, following, as we are told, the previous rulings of the court. I am unable
to find that the precise point raised in this case has ever been adjudicated in any
criminal case decided before Hoppe v. The State. In Shultz v. The State, 13 Tex. 401;
Burrell v. The State, 16 Tex. 147; in Calvin v. The State, 23 Tex. 577, and in perhaps one or
two earlier cases, in none of which does it appear that an appeal had been taken
from a judgment overruling a motion for a new trial or a motion in arrest of judgment, the
courts have held that an appeal would not lie to the supreme court on a verdict of
conviction where no final judgment had been entered. I believe I have thus fairly
stated the doctrine of the earlier cases. I will restate it; it is this: An appeal will
not lie from a verdict of conviction where no final judgment has been entered. I will
place this doctrine in juxtaposition with the statute-- art. 3151, Pas. Dig. The
article reads thus: "Where, from any cause whatever, a verdict of conviction has been
returned and there is a failure to enter judgment and pronounce sentence during the term,
the judgment may be entered and sentence pronounced at the next succeeding term
of the court, unless a new trial has been granted, or the judgment arrested, or
an appeal has been taken." It is announced in the opinion of the majority
of the court that this statute confers no jurisdiction upon the supreme court.
Certainly not. I do not for one moment claim that it does; but the constitution confers an
appellate jurisdiction upon this court, and warrants the allowance of an appeal
whenever, in the opinion of any member of the court, any error in law has been committed in
the district court. Suppose, then, a failure to enter a final judgment on the verdict
of conviction is the very error complained of. Will it be contended for one
moment that a judge of this court has no power under the present constitution to grant
the appeal? I assert it as my unqualified belief that it
would be the duty of any member of this court, regarding the final judgment,
so-called, as a sine qua non, to grant the appeal for this reason alone, and it would
be the duty of the court to correct the error. But what is the force of article
3151? It provides that a final judgment may be entered at a succeeding term of the court
where it has been omitted at the trial term, if a new trial has not been granted,
the judgment arrested, or an appeal taken. And suppose an appeal has been taken,
then what does the legislature say? If it is not said that nothing more shall be done
in the district court until the appeal has been determined, then the necessary
action of the district court may be had; but we may well ask ourselves what is
properly to be regarded as a final judgment in any case, and the question is fully
answered in Kennedy v. Morrison, 31 Tex. 220. In delivering the opinion of the court the
chief justice says: "In appealing from the final or last judgment that was rendered in
the cause, whether that judgment should be the adjudication of the court, that the
defendant go hence, etc., or that the plaintiff have and recover, etc., or that a new
trial be granted or refused to a party applying for the same--in either of these
cases the last judgment appealed from brings up for the revision of this court
all the previous proceedings or interlocutory judgments." *4 It might be insisted with much plausibility
that a motion for a new trial, or a motion in arrest, would be irregular and
certainly unnecessary if no final judgment had been entered on the verdict. But this court would not allow an appeal, unless
one or the other of these motions had been made in the district court and
overruled. Suppose, then, neither of these motions be made in the district court
where no final judgment has been entered, and the court goes on and sentences the
prisoner to the punishment to which the jury has condemned him. This sentence
will stand as a final judgment, and in my opinion the prisoner can take no
exception to it; and here, I think, arises much of the difficulty attaching to this
question. What is insisted on as a final judgment should, under our law, be no
more nor less than the sentence of the court condemning the prisoner to suffer the
penalty awarded by the verdict. Our criminal law is peculiar. Under our system
the court does not adjudge the punishment. The jury fixes that. The judgment of
the court can add nothing to it, and diminishes nothing from it. All the court
can do with it is to set it aside and grant a new trial, or arrest it for some
legal insufficiency of the record. Is it necessary, then, in order to give force to
the verdict, that the judge should say, "I approve the verdict of the
jury," or use some such unnecessary form of words, as will indicate that the judge does what he
cannot help doing? Form, and form only, has prescribed that the
judge, before the prisoner is taken to the cell or the scaffold, shall address the
prisoner, notifying him of his punishment, and the time and manner of its execution,
concluding with a benediction; but this is the last ceremonial of the court; and if it be a
judgment, it is the final judgment, and no appeal can be taken from it; nor can it
be pronounced, where an appeal has been taken, until that appeal has been determined
against the prisoner. It was the opinion of the late presiding justice
of this court, and is certainly entitled to consideration, that the 3d section
of the 5th article of the constitution does away with all necessary controversy on this
subject. The section reads thus: "In criminal cases, no appeal shall be
allowed to the supreme court, unless some judge thereof shall, upon inspecting a transcript of
the record, believe that some error of law has been committed by the judge before
whom the cause was tried." I again recur to this, and maintain that, if it
be error in law to omit the so-called final judgment, the appeal should be allowed and
the error corrected. But in attaching the importance I do in this consideration to the
foregoing clause of the constitution, I by no means surrender the doctrine of Hoppe v.
The State, 32 Tex. 389. Here the question was fairly met, that a party
convicted may appeal from a judgment overruling his motion for a new trial, though no
judgment has been entered upon the verdict of conviction. *5 It cannot be said that until judgment is
entered on the verdict the prisoner has no ground for a motion for a new trial, and
nothing to appeal from. Such is not the fact nor the law. The verdict of the jury fixing
the measure of his punishment is against him, and if he resist it by no motion,
nor appeal, and sentence follow, his doom is sealed. But to relieve the learned court
that decided Hoppe v. The State from any charge of inconsistency by reason of a
supposed clash between Hoppe v. The State and Lane v. Ellinger, I must examine the
latter case; and though Lane v. Ellinger is quoted as authority in the opinion
of the majority of the court, I think the most cursory examination of the case
will show that it has nothing to do whatever with the principle involved in the
case at bar, and in Hoppe v. The State. All that was decided in Lane v. Ellinger
is simply that no writ of error will lie to a refusal by a district judge to
enter a final judgment in a cause. I humbly submit that this case, thus fairly
stated, gives no support whatever to the opinion of the majority of the court. It was
no doubt properly considered by the court in Lane v. Ellinger that mandamus
was the proper remedy. I submit my opinion with all deference to the decision of
a majority of the court. Tex. 1873. ALBERT FULCHER v. THE STATE of TEXAS. 38 Tex. 505, 1873 WL 7444 (Tex.) END OF DOCUMENT Tex. 1874. IRA J. COX v. THE STATE. 41 Tex. 1, 1874 WL 7970 (Tex.) When the location of a county boundary is a
material fact to be determined, evidence of general reputation is admissible in
criminal as in civil cases. The failure of the court to give an instruction
on the trial of a criminal cause, fully embracing all the facts necessary
to constitute the offense, will not be cause for reversal, if it clearly
appears from the evidence that such instruction could not have resulted in
protecting any right of the accused. *1 APPEAL from Travis. Tried below before the
Hon. J. P. RICHARDSON. COX was indicted for theft from a house situate
in BASTROP county, within four hundred yards from the county line of
Travis county. The article in the Code of Criminal Procedure permitting the venue
to be laid in Travis when the offense was committed in BASTROP is as
follows: "An offense committed on the boundary line of any two counties, or within
four hundred yards thereof, may be prosecuted and punished in either county,
and the indictment or information may allege the offense to have been
committed in the county where it is prosecuted." The court gave in charge the statutory
definition of theft, and did not instruct the jury that the taking of personal
property from the possession of one holding it for another must, to
constitute theft, be a taking without the consent of the person so holding it; but no
instruction was asked on that point, nor were exceptions taken to the
charge as given. The evidence was, however, conclusive that the taking was
without the consent either of the owner or his agent having charge of the
property. The evidence was circumstantial, and is detailed
in the opinion. Verdict of guilty, from which COX appealed. EVANS & CUNNINGHAM, for appellant,
contended-- 1. That the court did not give in charge all the
law applicable to the case, and that the judgment should be reversed, citing
Pas. Dig. arts. 3059, 3060; BROWN v. The State. 2. That parol evidence should not have been
admitted to establish by common reputation the location of the county line
between Travis and BASTROP counties; that the English doctrine allowing it
grew out of the fact that, as their county boundaries were not established
by act of Parliament, there could be no other evidence than that of general
reputation; but in the American States county boundaries were fixed by
law, which, being the best evidence, should have been resorted to. 3. That the State could not allege the offense
to have been committed in Travis, and prove it in BASTROP county. 4. That this court should take cognizance of
errors apparent upon the face of the record, though not assigned, when the
same go to the foundation of the action, and especially where the life or
liberty of the citizen is involved. George CLARK, Attorney General, for the State. DEVINE, ASSOCIATE JUSTICE. *2 The defendant was indicted in the county of
Travis; indictment charging that, on the 7th day of February, 1874, the
accused, in said county and State, did then and there, in the county of
BASTROP, within four hundred yards from the county line of Travis county,
unlawfully and fraudulently take from the possession of R. T. HILL,
"and out of the dwelling-house occupied by said HILL," certain moneys
belonging to "W. H. CALDWELL, without the consent of the said HILL, the person having
possession of said money, and with the intent," & c., &c. The jury found the accused guilty, as charged,
and assessed his punishment at five years' imprisonment in the penitentiary. The defendant's motion for a new trial was
overruled, notice of appeal given, and the case is presented for revision on
the following assignments of error: "That the court erred in not
instructing the jury that the taking of personal property from the possession of one
holding it for another must be a taking without the consent of the person so
holding it." The charge of the court in this respect might have been
fuller. The omission in this case is, however, not material; it was not absolutely
necessary for the protection of any right which the accused might
have. The evidence of W. H. CALDWELL, the owner of the money charged to have
been stolen, and of R. T. HILL, in whose possession it was at the time of
the theft, is positive on this point; both witnesses state they did not
give their consent, and the defendant made no proof contradictory of this
evidence. The second assignment, "that the court
erred in instructing the jury that general reputation of the location of the county
line is evidence of such location," suggests no real error. Mr. GREENLEAF, in his treatise on Evidence, vol.
1, p. 152, states the rule as follows: "In matters of public interest
all persons must be presumed conversant, on the principle that individuals
are presumed to be conversant in their own affairs; and as common rights are
naturally talked of in the community, what is thus dropped in conversation
may be presumed to be true. It is the prevailing current of assertion that
is resorted to as evidence, for it is to this that every member of the
community is supposed to be privy and to contribute his share. Evidence of common
reputation is, therefore, received in regard to public facts, * * * on
ground somewhat similar to that on which public documents not judicial are
admitted, namely, the interest which all have in their truth, and the
consequent probability that they are true." Appellants in their brief contend that the
English rule as to common report, or traditionary evidence in proving boundaries,
and, as in this case, the boundary line between the counties of BASTROP
and Travis, "being handed down by tradition from generation to
generation," was allowed "in accordance with the well-known principle of the law of evidence,
that it was the best evidence the nature of the case admitted
of;" but that "this doctrine is not applicable to this country, especially to the
newest of the American States." In NOYES v. WARD, 19 Conn. Rep.,
p. 268, in an action of trespass vi et armis, where defendant assaulted "the
city highway surveyor," for interference with the land of defendant, the
court held that such evidence, to show a moving in of defendant's fences
twenty-one years before, was proper, and say, "Proof of general
reputation was admissible in this case for the purpose of showing the existence and
extent of the highway in question." *3 In BOARDMAN et al. v. The Lessees of REED and
FORD, 6 Peters, 328, Justice MCLANE, in delivering the opinion, says:
"That boundaries may be proved by hearsay testimony is a rule well
settled, and the necessity or propriety of which is not even questioned."
"Landmarks are frequently found of perishable materials, which pass away with
the generation in which they are made; by the improvement of the country, and
from other causes, they are often destroyed. It is therefore important in
many cases that hearsay or reputation should be received to establish
ancient boundaries." In RALSTON v. MILLER, 3 Rand., (Va. Rep.,) p.
44, the question grew out of the location of a building on the corner of a
street in the city of Richmond, and the controversy was whether
ancient use, and general reputation of that use or occupation, should on
the trial outweigh the depositions and survey of a surveyor as to the
true line. The court said "that ancient reputation and possession
were entitled to infinitely more respect in deciding on the boundaries of the
lots than any experimental surveys." In the American notes to 1
PHILLIPS & ARNOLD on Evidence, from page 220 to 227, the citations from decisions of
the courts of New Hampshire, Massachusetts, Connecticut, New York,
Pennsylvania, Maryland, Virginia, North and South Carolina, Tennessee,
and other States show that evidence of hearsay or general reputation to
prove boundary lines has been extended quite as far in those States as in the
English courts. Mr. GREENLEAF, in his work on Evidence, in a
foot-note, pages 167 and 168, says: "The admission of traditionary
evidence in cases of boundary occurs more frequently in the United States than in
England," and that "the general practice in this country in the admission of
traditionary evidence as to boundaries seems to agree with the common law,
as stated in the text." The boundary lines of Travis and BASTROP were
shown by the evidence to be less than four hundred yards from the house from
which the money was charged to have been stolen. The testimony of R. T. HILL
on this point is as follows: "From where common report in the
neighborhood says that the line between Travis and BASTROP counties is, is two
hundred and fifty yards from my house, from which the money was taken; I have
stepped the distance." This line had been in existence nearly twenty-eight
years, and acknowledged as the dividing line. There is nothing in the
cross-examination of this witness, neither is there any evidence in the
statement of facts, that either weakens or contradicts the evidence for
the State on the question of the county line. The 3d assignment of error, "that the court
erred in not granting a new trial, and in overruling the defendant's motion
for a new trial," is based on the grounds set out in the motion for a new
trial, which are as follows: "The verdict of the jury is contrary to the
law as given in the charge of the court. The verdict of the jury is contrary
to the evidence as adduced on the trial of this cause. The verdict of the jury
in assessing the punishment of defendant at five years in the penitentiary
is cruel and excessive." *4 The first ground for a new trial it is not
necessary to consider. The second, that the verdict of the jury is contrary
to the evidence, does not appear to be borne out by an examination of the
statement of facts in the record. The defendant was indicted for stealing from the
dwelling-house and possession of R. T. HILL, and without his
consent, one hundred and sixty dollars, the property of him, I. C. CALDWELL.
The uncontradicted evidence of the witness proved that the money was in the
trunk, and it locked, when the white family went to church in the morning; on
their return, in the evening, Mr. HILL, the owner of the trunk, unlocked it,
and missed the one hundred and sixty dollars, mostly in silver, of
CALDWELL's, and one hundred and forty dollars in gold and twenty in silver
belonging to himself. The witness, CALDWELL, learning that defendant had
been there, started next morning, traced the accused to Webberville, and
there learned from the ferryman that the accused had crossed the river
at the ferry the evening before. Witness went on to the railroad, learned
that he had gone down on the last train, followed down and arrested
defendant at Hempstead, in Austin county; carried him to this city, and delivered
him to the sheriff of Travis county. The accused had on his person when
arrested two hundred and ninety-three dollars and forty-five cents, ($293
45,) chiefly gold, and among the keys found in his possession at the
time of his arrest was one which unlocked the door of Mr. HILL's house. The
evidence showed further, that he had been in the employ of Mr. HILL a
short time; that he told HILL he had no money; that he received his wages from
time to time in small sums; that when discharged there was coming to him on
his wages only the trifling sum of five dollars and twenty-five cents. The
negro woman, Betty, testified that, having gone from the kitchen to her house
while the white family were absent at church, she found the defendant
changing a portion of his clothing; that he accompanied her to the
kitchen, and had something to eat; that she was in the kitchen when he came to her
house; how long defendant was there before she saw him witness could not
tell; he walked about the yard; witness saw him off and on about every ten
minutes; did not see him go into Mr. HILL's house; he stayed there about an
hour; she saw him when he left the premises. This witness stated that
defendant told her on the day referred to "that he was going to Austin to
gamble; that he had in his life won money at playing cards, and that he intended
to try it again." Witness had frequently seen the keys found on the person
of the accused; they belonged to him. Defendant told her that the
door-key (which unlocked the door of HILL's house) belonged to his father's
door, and was one that he had before he left his father's house. This witness
stated "there were three families of colored people living on the premises
outside of the yard palings," and within a few hundred yards of
Mr. HILL's house there were as many as twenty or twenty-five colored people
living." She further stated that two colored men came into the yard that
day, and it was customary for them to do so. This embraces all the material
facts in the case, and, taking them in their regular and necessary order, they
form the links of an unbroken chain of evidence that encircles the
defendant, and from which he has not attempted to escape by explanation or
opposing evidence; and from the ability and interest displayed in his behalf
by his counsel it is reasonable to presume that if evidence existed
it would have been produced, or an effort made to obtain it. *5 It is true, as stated in the brief, that some
other person residing in the immediate neighborhood may or might have
taken the money; but applying to the evidence in this case the tests which men
apply when endeavoring to form a final judgment on any of the important
transactions of ordinary life, every conclusion must be that the defendant was
guilty as charged in the indictment. The evidence shows him to have been well
acquainted with the premises. Among the keys found on his person is one which
unlocked the door of the house; the explanation is that it belonged (from his
statement) to his father, and was the door-key of his father's house. What
reason there was for his carrying this key with him while in the
employment of R. T. HILL, and why he carried it away to Hempstead, is not shown. It
could not be for its value, and it certainly was not for legitimate use. On
the day of the theft he makes his visit to the house or premises of Mr.
HILL. And for what purpose did he remain and loiter around the yard for an
hour? Here he is found with a key to open the door in his possession, and
evidently staying there to find an opportunity to do so unobserved. The
trunk containing the money is in the room, and the key to unlock the trunk
hanging with a bunch of household keys in the room in their usual place.
On that day the money, about three hundred and twenty dollars, in gold
and silver, is stolen from the trunk. Defendant told the witness Betty on
that day that he was going to Austin; yet he crosses the river that evening at
Webberville, takes the train going down instead of up the country, and
is arrested at Hempstead. Upon his person is found two hundred and
ninety-three dollars and forty-five cents, ($293 45,) principally in gold, being
about the amount stolen, after deducting traveling expenses, &c., &c.
The question may be asked, where did he obtain this amount; was it by honest
industry, or gaming during a week or two, or at any time previous to his arrest? He
does not account nor attempt even to account for it, and his own statements
show he had no money when in HILL's employ or when he left, save $5 25.
Taking, then, all these facts--his knowledge of the premises; his visit
there during the absence of the family; his loitering around the house
during an hour, to the cook's knowledge, and how long before she found him in
her house she does not know; his telling her he was going to Austin, and his
leaving the neighborhood, passing through BASTROP and Washington counties,
and arrested at Hempstead, in the direction opposite to that he stated he
was going; among his keys one found that unlocked the door of the house from
which the money was stolen, the key not belonging to him, and the only fact
connected with its possession that he told the witness it belonged
to his father's house; without funds when he was discharged by Mr.
HILL, and the day after the theft with two hundred and ninety-three dollars
and forty-five cents ($293 45) in his possession, a sum nearly equal to the
amount stolen--against these facts not one word of evidence was offered
to break or weaken their force against him. *6 All the facts and circumstances of this case,
when taken together, were sufficient to lead the mind of the jury to the
deliberate conclusion that the accused, and no other person, committed the
offense charged. There was therefore no error in refusing a new trial. That the verdict is cruel and excessive in
assessing the punishment at five years in the penitentiary is not apparent. The
jury had the exclusive power to determine the amount of his punishment within
the periods declared in the Penal Code; having done so, it is not a matter
of revision. The judgment is AFFIRMED. |
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