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SUPREME COURT RECORDS PAGE
4
File contributed by Lisa Lach and proofed/formated by
Dena Stripling Court of Appeals of Texas. WILLIAM PERKINS v. THE STATE. 1876. It is an abuse of discretion to
refuse a second continuance because of the absence of witnesses, where
accused had caused them to be attached, and they had given bonds for their
attendance, and did attend court until the day of trial, when they left without his
procurement, and where accused was reasonably certain of being able
to compel their attendance at the next term, though there was another
witness who could testify to the facts expected to be proved by the
absent witness, such witness being interested in seeing accused convicted. *1 APPEAL from the District Court
of Williamson. Tried below before the Hon. E. B. TURNER. John DOWELL and Phil. CLAIBORNE,
for the appellant. A. J. PEELER, Assistant Attorney
General, for the State. ECTOR, Presiding Judge. The defendant was indicted, July
16, 1874, for the theft of a gelding, the property of J. W. MEARS. He was
tried January 11, 1876, found guilty, and his punishment assessed at five
years in the penitentiary. Defendant made an application for continuance,
January 11, 1876, which was overruled upon certain grounds stated by the
judge in the court below; to which ruling the defendant took a bill of
exceptions. After giving the style and number
of the case, the court and term, the following is a copy of
defendant's application for a continuance: "Now comes the defendant in
the above entitled and numbered cause, in his own proper person, who, after
being by me duly sworn, upon oath says that defendant cannot safely go into
trial in said cause at this term of the court for want of the testimony
of Charles COTTINGHAM, William LITTON, and Bat LANE, all of whom are
resident citizens of the county of BASTROP, and state of Texas, whose testimony
is material to aid defendant in his defense in said cause. Affiant says that
he expects and can prove, by each and every one of said witnesses, that
affiant is not guilty of the charge as alleged in said indictment filed in this
cause; and, further, that affiant bought and purchased said gelding affiant
is charged to have stolen from one James FULLER, and paid him therefor a reasonable consideration, and that affiant's connection with said gelding is
perfectly innocent, and in perfect conformity with law. That affiant
has used due diligence to procure the attendance and testimony of said
witnesses at this term of the court, by causing an attachment to be
issued to said county of BASTROP for said witnesses on the 10th day of
March, A. D. 1875, which was duly served upon said witnesses by the sheriff of BASTROP
county, and the bond of said witnesses taken by said sheriff
of BASTROP county, on the 15th day of April, 1875, for the appearance of said
witnesses at the next term of the court thereafter, and from day to day
until this case was tried; and that said witnesses have, since said bond
was taken, been in regular attendance upon this court, except upon this day,
and that affiant does not now know why said witnesses are not in
attendance; that said witnesses are not absent by the procurement or consent of
affiant; that this application is not made for delay; that the testimony of said
witnesses cannot be procured from any other source; and that affiant
has a reasonable expectation of procuring the attendance of said witnesses in
this cause at the next term of the court;" which was duly signed and sworn
to before the clerk of the court. The defendant took a bill of
exceptions to the action of the court on his application for continuance. The
district judge, in overruling the application for continuance, as
stated in said bill of exceptions, did so on the following grounds: *2 "1st. The court having
commenced on the 3d day of January, 1876, and the appellant, being out on bail,
should have taken some steps to procure his witnesses. 2d. The application itself
discloses the fact there is another man by whom the fact, to wit, that appellant
had purchased the gelding, whose evidence, if the fact be true, might be
obtained; at any rate, if there was any reason why such person could not be
procured, that reason should be stated in the affidavit." As to the first point, as has
been said by the counsel for the defendant in their able brief, we simply say
that no better diligence could have been used by appellant to obtain his
witness than was used by him and stated in his application. Defendant states
that he had an attachment issued for his witnesses on the 10th day of
March, 1875, which was served upon them by the sheriff of BASTROP county, and
their appearance bonds taken by him, on the 15th day of April, 1875, for the
next term of the district court of Williamson county, and from day
to day until the case was tried; and that his witnesses, since the taking
of their bonds, had been in regular attendance upon the court, except
upon the day when the case was tried. The defendant used all the diligence
the law required to procure the attendance of said witnesses, and the fact
that he was out on bond would not authorize or require him to take other
steps to secure their attendance, and it is an immaterial question as to when
the court commenced or when it adjourned. If appellant's witnesses had been
attached, and were under bond for attendance upon the court, to testify for
the defendant in this case, and had appeared from day to day until the day
when the case was called for trial, and were then absent without his
procurement or consent, we think he had used due diligence, and that he is not to
blame for their non-appearance. The application states that the
testimony of the witnesses cannot be procured from any other source.
We believe this is a sufficient answer to the 2d ground assigned by the
judge for overruling defendant's application. The defendant distinctly states
that the testimony he desires could be proved only by the witnesses he
had attached. The statute, upon the point of negativing, in the application, the fact that the testimony can be procured
from any other source except the witnesses named in the application, has
done so in a particular way, and used certain words to express it. If the defendant did purchase the
gelding from James FULLER, as he swears in his application he did, it is
probable that FULLER committed the theft himself, or that defendant had
reason for thinking so, and, if so, he reasonably believed he could not
prove that he purchased the gelding from him, the said FULLER, by FULLER
himself. The statute prescribes the
conditions upon which continuances are granted, and a party will be entitled to a
continuance when he brings himself strictly within the terms of the
statute. That bad men will avail themselves of this rule, to delay or defeat
the ends of justice, would be a good reason to change the law in regard to
granting continuances; whilst the law remains as it is, we should enforce it.
We deem it unnecessary to notice the other points mentioned in defendant's
assignment of errors. *3 The judgment is reversed and
the cause remanded. Reversed and remanded. Court of Appeals of Texas. GEORGE ROBERTSON v. THE STATE. 1876. In an indictment for the theft of
cattle, a designation of the species is sufficient-as cow, steer, ox, and
the like-without use of the generic term "cattle," and it was
not error to overrule a motion to quash an indictment for theft of a "beef
steer," on the ground that the indictment failed to allege that the animal was of the
"species of cattle." *1 APPEAL from the District Court
of BASTROP. Tried below before the Hon. L. W. MOORE. The opinion of the court sufficiently
states the case. JONES & SAYERS and J. P.
FOWLER, for the appellant. H. H. BOONE, Attorney General,
for the State. WINKLER, J. The appellant was indicted,
tried, and convicted in the district court of BASTROP county on a charge of
unlawfully and fraudulently taking from the possession of G. H. JENKINS,
without his knowledge or consent, and with intent to convert to his own use,
"a certain yellow and white pieded beef steer." A motion was made to quash the
indictment, "because the indictment attempts to charge the defendant with the
commission of a felony, and fails to do so in that the property alleged to
be stolen is not alleged to be of the species of cattle." The
motion to quash was overruled by the court, and the defendant excepted. The ruling of the court on the
motion to quash is made a ground in a motion for new trial, which was also
overruled. The defendant was then tried on a plea of not guilty, found guilty
by a jury, and his punishment assessed at confinement in the state penitentiary
for a period of four years, and judgment entered accordingly. An appeal is taken on the
following assignment of errors: 1st. The court erred in its
charge to the jury. 2d. The court erred in refusing
the charges asked by the defendant; and, 3d. The court erred in overruling
the motion for new trial. Considering the several alleged
errors in the order of presentation, as to the 1st we need do no more than
say we have examined the charges as given by the court, and, when taken in
connection with those given at the request of the defendant, we are of opinion
that the law of the case, as made by the evidence, was correctly given to
the jury, and as favorably for the accused as the testimony warranted. The 2d error assigned, refusing
to give certain charges asked by the defendant, is not maintainable.
Those portions of the several charges refused which were at all
applicable to the case are embraced substantially in the charges given. The
remaining portions were inapplicable, and could only have tended to confuse the
minds of the jury. As to the remaining error
assigned--to wit, the overruling of the defendant's motion for new
trial--we are of opinion this ruling of the court below was proper. The question of
the guilt or innocence of the accused was fairly submitted to the jury. The
evidence on the part of the prosecution was sufficient to fix on the
defendant the wrongful taking of the animal, under circumstances amounting to
theft under the law, and sustains the verdict of guilty found against
him by the jury. There is nothing in the record to justify us in
concluding that the jury exceeded the bounds of a proper discretion in fixing the
punishment as they have done, it being within the limits prescribed by
the statute. The prosecuting witness proved ownership in himself, not in
Burleson. *2 Nor do we think the court
erred in overruling the motion of defendant to quash the indictment. The
indictment charges theft of "a beef steer." The objection urged against it is
that it fails to allege that the animal was of the "species of
cattle." Repeated decisions of the supreme
court show that in charging theft of cattle it is only necessary to
charge the species--as cow, steer, ox, and the like-- without the use of the
generic term, "cattle." This was settled law in Texas before the
organization of this court, and, as an investigation of the authorities will
abundantly show, correctly settled. In PARCHMAN v. The State
reference is made to the following: Bishop on Stat. Crimes, sec. 440, refers to The
State v. PEARCE, Peck, 66; The State v. HAMBLETON, 20 Mo. 452; The State
v. ABBOT, 20 Vt. 537; TYLER v. The State, 6 Humph. 285; Whart.
Am. Cr. Law, 4th ed., sec. 377, and references there made. The indictment in this case, in
using the word "beef steer," is sufficient, without the statutory word
"cattle," and the motion to quash was properly overruled. We have carefully examined all
the questions presented in the record and by counsel in argument, and have not
found anything which would warrant us in reversing the judgment of the
district court of BASTROP county rendered in this case. Affirmed. Supreme Court of Texas. CALVIN THOMPSON v. THE STATE. 1875. A statement in the concluding
argument by the district attorney, insisting that the fact that the acting
justice of the peace held accused to bail was evidence that the justice thought
him guilty, is a reversible irregularity. In an indictment for theft of
several articles of the aggregate value of over $20, it is sufficient to
allege such aggregate value. It is not necessary that the separate value
of each article be set out. To convict upon an indictment for
theft of several articles, where the aggregate value only of such
articles is alleged, the testimony must show the theft of all of the articles
alleged to have been stolen. On trial of an indictment for
theft, a charge that mere possession of property recently stolen is prima
facie evidence of theft, which casts upon the defendant the necessity of
explaining such possession, is error; the rule being that the possession of
property recently stolen is evidence against the accused, which may be
considered by the jury in connection with the other testimony in the case. *1 APPEAL from BASTROP. Tried
below before the Hon. J. P. RICHARDSON. Calvin THOMPSON was indicted for
theft of "four barrow hogs and two sow hogs of the aggregate value of thirty
dollars." On the trial the owner of the
hogs testified that his "hogs were missing about first of April, 1874. Some time about the first of July the two sows came home without the others and
in the mark of the defendant." * * "When the two sows came
back I told Jim WILLIAMS, a freedman, who was living with me, to go to the
defendant's house and look for my hogs. In a day or two WILLIAMS told me he
saw four of my hogs in a pen on the premises of the defendant. I then applied
for a search-warrant and went to defendant's house. This was about
6th July; found four hogs in defendant's pen, being the four barrows
described in the indictment." There was a conflict in the
evidence as to ownership. THOMPSON's claim to the hogs had been public, and no
attempt at concealment of the hogs was shown. No other evidence was
given as to the two sows. M. W. TRIGG, for defendant,
testified that some time in the spring of 1874 defendant came to witness for
advice about a lot of his hogs that had come up with their mark changed.
Witness advised him he had better go slow about taking hogs--to put up the hogs
and keep them until somebody came and claimed them, in which event he
could try the right of property in the hogs. This was before the arrest. H. J. WAMEL, for defendant,
testified that he was a justice of the peace in BASTROP county; that about the
last of March or first of April witness went to defendant's house to see about
the election, which was soon to come off; while there defendant called the
attention of witness to and asked witness to look at some of his hogs, the
marks of which had been recently changed. The defendant asked witness what
he must do about them. Witness told defendant to put them up in a pen
and let the person who had changed the mark come and claim them; that in
that way the party could be caught and prosecuted. These hogs were the
same described in the indictment. The judge, after defining theft
and its punishment, charged the jury as follows: "If hogs are going
at large in their range, they are in possession of the owner, and if they are
taken from the range, they are taken from the possession of the owner. "Possession of property
which has been recently stolen is prima facie evidence of theft, and it
devolves upon the defendant to explain such possession so as to rebut that
presumption or so as to raise a reasonable doubt in your minds of his guilt. If the defendant took the hogs in
good faith, believing them to be his own, then he is not guilty of theft,
and you should return a verdict of not guilty." The defendant asked the following
instructions: *2 "A preponderance of
testimony in favor of the State in a criminal prosecution for theft as to the
title to the property is not sufficient to warrant a conviction. But when there is a conflict of
testimony relative to the title in order to convict the defendant of theft,
the State must show beyond a reasonable doubt that the defendant took the
hogs in the indictment not only unlawfully but fraudulently." Which was refused by the judge
because "sufficiently given in the general charge, so far as it applies to
this case." In the concluding argument by the
district attorney it was insisted that the fact that the other witness,
WAMEL, acting justice of the peace, held the witness to bail, was evidence
that said WAMELL thought him guilty, to which the defendant objected upon the
ground that the argument was not fair and legitimate, as the defendant
could not reply, and appealed to the court, but the court in the presence of the
jury told the district attorney to proceed. The jury found the defendant
guilty, and assessed his punishment at two years' confinement in the
penitentiary; upon this, judgment was rendered. Motions for new trial and in
arrest of judgment were overruled and defendant appealed. JONES, SAYERS & RUSSELL, for
appellants. A. J. PEELER, Assistant Attorney
General, for the State. MOORE, ASSOCIATE JUSTICE. Whenever the value of the
property alleged to have been stolen is an element for determining the grade of the
offense or the extent of its punishment, it is unquestionably necessary to
allege in the indictment the value of the stolen property. Obviously,
therefore, when the difference between grand and petit larceny is distinguishable
merely by the value of the property stolen, not only must its value be
stated, but where several articles are stolen, unless the value of each article
stolen is alleged instead of the aggregate value of the whole, if there is a
failure in the proof of the larceny of some of them, a general verdict
would not be justified by the evidence or warrant a judgment, because in
such case the indictment would not show the value of the articles proved to
have been stolen or the grade of offense of which the defendant should be
adjudged guilty. It is therefore generally customary, and is certainly more
prudent, to allege the separate value of the articles stolen, rather than
to charge merely their aggregate value. Still, if the indictment is in
all other respects sufficient, on sound reason it cannot be held to be
defective merely because it alleges the aggregate value instead of the
several individual values of the articles charged to have been stolen. That
under such character of indictments parties may escape conviction for
the lesser grade of offense, is an objection to the policy, and not
to the legal sufficiency of such indictments. But while we do not think the
motion to arrest the judgment on this ground should have been sustained, we
think the application for a new trial should have been granted, because the
verdict is not warranted by the evidence. In all ordinary criminal cases it is
said that a general verdict of ""guilty" is a finding for the State of
everything which is well charged in the indictment. Thus, it finds that
the defendant stole every article specified in the indictment, and that they
are of the value charged. If the evidence is not sufficient to warrant
these conclusions, then it cannot be said that a general verdict which imports
them is justified by it or should be sustained. In this case there
certainly can be no pretense that the testimony in the record will
warrant the conviction of appellant for stealing the two sows. "That
they came home some time about the first of July in the mark that defendant
gives," which is all the testimony, is altogether insufficient to
sustain the verdict as to them, is too obvious for comment. Yet the only
testimony as to value was with reference to the aggregate value of all the hogs
as laid in the indictment. And even as to the four barrow hogs, while there
is much and strongly conflicting testimony as to which of the claimants was
the owner of them, there is little, if any, credit to be given to appellant's
witnesses, which warrants the belief that they were fraudulently and
feloniously taken by him. *3 In view of the facts of this
case and the issue presented by them, there was error in the charge given by
the court as well in its refusal to give that asked by the defendant. When
property is shown to have been recently stolen and there is no question
as to its title, but the point in dispute is whether the defendant is the
thief, unquestionably proof of possession of the property by the defendant
shortly after it was stolen may be adduced as evidence tending to prove
defendant guilty of the theft. But even then it is not strictly correct to charge
the jury that mere possession of property recently stolen is prima facie
evidence of the theft, which devolves upon the defendant the necessity of
explaining such possession, so as to rebut the presumption or raise a
reasonable doubt in the minds of the jury of defendant's guilt. Such charge reverses the rule as
to the burthen of proof, and transfers it from the State to the defendant.
The charge in effect tells the jury, if defendant is shown to have been
in possession of the stolen property, they should find a verdict against
him, unless he can rebut the presumption or raise a reasonable doubt in their
minds of his guilt, while the true rule is that the possession of property
recently stolen is evidence against the accused, which, like all other
evidence, is to be taken and considered by the jury in connection with the
other testimony in the case. And unless the jury, on consideration of it in
connection with the other evidence before them, are satisfied of the guilt
of the accused beyond all reasonable doubt, they should acquit him. In this
case there was no controversy in regard to the possession of the four
barrows in question. Appellant not only admitted possession, but claimed them as
his property, and supported his claim by strong testimony tending to
establish its truth. Under such circumstances, the issue upon which the case
should have been decided was whether the hogs, if not his property, were taken
by the defendant, believing them to be his, or whether he took them
fraudulently and with the intent to deprive the owner of them. This issue is
clearly presented in the charge asked by appellant and it should have been
given. The character of discussion
indulged in by the district attorney in his concluding address to the jury,
as shown by the bill of exceptions, was not justified or warranted by the
evidence in the case or what had been said by appellant's counsel, to which it
is claimed to have been a legitimate response. And such line of
argument should not have been insisted upon by him or allowed by the court when
objected to by defendant's counsel. But whether it was, notwithstanding
the charge of the court in reference to it, given at the instance of
defendant, calculated to do him such injury as should, if it stood alone,
require a reversal of the judgment, need not on the present occasion be decided,
as this must be done for the reasons already stated. We deem it,
however, of sufficiently grave importance and so highly objectionable as to
require the decided condemnation of the court. Zeal in behalf of their clients,
or desire for success, should never induce counsel in civil causes, much less those representing the State in
criminal cases, to permit themselves to
endeavor to obtain a verdict by arguments based upon any other than the
facts in the case and the conclusions legitimately deducable
from the law applicable to them. *4 The judgment is reversed and
the case remanded. REVERSED AND REMANDED. Supreme Court of Texas. JOHN GORMAN ET AL. v. THE STATE OF TEXAS. 1873. *1 A bail bond which describes A.
B. as principal "conditioned, that whereas an indictment has been preferred
against A. B.," etc., "now if the above bounden ______ ______ shall make
his personal appearance at the next term," etc., if in other respects good,
is not vitiated by the failure to insert the name of A. B. after the word
"bounden," but may be enforced as the bond of A. B. APPEAL from BASTROP. Tried below
before the Hon. J. P. RICHARDSON. A bail bond which describes A. B.
as principal, "conditioned that whereas an indictment has been preferred
against A. B.," etc., "now if the above bounden _________ shall make his
personal appearance at the next term," etc., if in other respects good,
is not vitiated by the failure to insert the name of A. B. after the word
"bounden," but may be enforced as the bond of A. B. JONES & SAYERS, for
appellant. The omission of the name of the principal, to wit, "John GORMAN," in
the condition of the bond, is fatal. The bond being statutory, must comply in letter
as well as in spirit with the requirements of the law, upon which its
validity depends. By reference to art. 2732, Pas. Dig., it will be perceived that
the second requisite of a bail bond is imperative, and unless this
requirement is satisfied the bond will be nugatory. In the case at bar the
name of the principal is omitted, and that fact should have been held as a reason
sufficient for the discharge of the defendants (appellants) in the court below. Attorney General, for appellees. OGDEN, J. There is no error in the judgment
of the district court in this case. John GORMAN, as principal, with others
as sureties, entered into bond in the sum of $200, conditioned that,
whereas, an indictment had been preferred against John GORMAN, etc. * * Now if the
above bounden _________ shall make his personal appearance at the next
term of the district court, to be holden at the court house in the town of
BASTROP, on the fourth Monday in November, 1871, to answer said indictment,
etc. It is contended that the blank in the condition after bounden vitiates
the bond for uncertainty, but we do not so understand the force of the bond
nor the requirements of the statute. John GORMAN was the principal in
the bond; he was the party indicted, and it is very clear that he was the
defendant, and the one to answer to the indictment found against him, and
if his name had been inserted in the blank it would not have made the
conditions more certain or definite. The above bounden meant John GORMAN, the
defendant, and could, by no legitimate construction of the language or
the law, have reference to any one else. *2 The judgment is affirmed. Affirmed. Supreme Court of Texas. A. W. MOORE v. THE STATE. 1872. *1 1. A bail bond, taken by a
committing magistrate before indictment found, was conditioned for the
appearance of one H., "at the next term of the District Court, to answer such
bill of indictment as may be preferred against him by the Grand Jury of
B. county." Held, that the condition of the bond is sufficient. The law does
not require as great particularity in a bond taken by a committing
magistrate as it does in a bond taken before a District Court after indictment
found. 2. A magistrate by whom a party
had been committed, had no authority to take and approve a bail bond after the
adjournment of his court. APPEAL from BASTROP. Tried below
before the Hon. I. B. MCFARLAND. A magistrate by whom a party has
been committed has no authority to take and approve a bail bond after
adjournment of his court. A bail bond taken by a committing
magistrate before an indictment is found, conditioned for the appearance of
the accused at the next term of the district court to answer such
bill of indictment as may be preferred against him by the grand jury, is
sufficient. There is no occasion for a
statement of the facts. JONES & SAYERS, for the
appellant. Wm. ALEXANDER, Attorney-General,
for the State. OGDEN, J. The first objection to the bail
bond is not well taken. The law does not require as great particularity in
a bond taken by a committing magistrate, as it does in a bond taken before
the District Court after indictment found. But under the authority of The
State v. RUSSELL, 24 Texas, 505, we must decide that the magistrate,
before whom the party had been committed, had no authority after the adjournment
of his court, to take and approve a bail bond. The judgment is therefore
reversed, and the cause dismissed. Reversed and dismissed. Supreme Court of Texas. GEORGE THOMPSON v. THE STATE. 1871. *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 WALTERS 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. 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, 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. 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." 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; 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. Supreme Court of Texas. THE STATE v. GEORGE ALLEN AND OTHERS. 1869. *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. 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. 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. Supreme Court of Texas. JAMES H. GOODMAN v. E. H. MCGEHEE. October, 1868. *1 Confederate treasury notes
were promises of the Confederate States to pay a certain number of dollars
therein mentioned to bearer, within a specified time, after a treaty of peace
between the Confederate States and the United States, and as such they were
intended to aid the rebellion, were in violation of the constitution of
the United States, and were illegal and void. If any part of the entire consideration
for a promise, or any part of an entire promise, be illegal,
whether by statute or at common law, the whole contract is void, and every
executory contract, the consideration of which is illegal on either side, is
void. Parol evidence to show that a contract is founded on an
illegal consideration is admissible. If a contract be illegal, it may
be avoided by a proper plea, even though it be a specialty, and the
illegality be not apparent on the face of the instrument. Confederate money, whether it
forms the consideration on the part of the obligor or obligee,
is illegal. [LINDSAY, J., concurred, but
said: "I cannot agree that a contract, the consideration or performance of
which is illegal, is void."] ERROR from BASTROP. The case was
tried before Hon. JOHN IRELAND, one of the district judges. GOODMAN sued MCGEHEE on a note,
dated 18th of May, 1863, due at one day after date, for $700, with
interest at ten per centum per annum. The defendant pleaded that the note
was given for treasury notes of the Confederate States of America,
and that they were valueless; that he afterwards tendered the full
amount of said notes "in the new issue," which the defendant refused to receive.
The court charged the jury in accordance with the scaling ordinance. The jury found a verdict for
$615, of which the plaintiff remitted $115. The defendant prosecuted error. It
was proved that the note was given for Confederate treasury notes, and
their value at the date of the note was proved to be about fifty cents in
the dollar. Contracts, the basis or
consideration of which was Confederate money, are illegal, and cannot be judicially
enforced. Parol evidence is admissible to defeat a recovery on a note,
valid on its face, by showing that it was
given in consideration of Confederate treasury notes, such notes being made
payable only after a treaty of peace between the United States and the
Confederate States, and being issued in aid of the Rebellion, and hence constituting
an illegal consideration. A. D. MCGINNIS, for plaintiff in
error. The plaintiff in error insists on a reversal of the judgment of the
court below and a dismissal of the case on the principle settled by this
court in the cases of SMITH v. SMITH, 30 Tex. 754, and LINDER v. BARBEE [not
published], decided by this court at the last Austin term. *2 In this case, as in the case
of LINDER v. BARBEE, the con sideration of the note sued on was treasury
notes of the late so-called Confederate States, as shown by the sworn
plea of the plaintiff in error, and the testimony of the witnesses for
both parties, as well as the charge to the jury of the court below, who also
authorized the jury to estimate the difference between specie and
United States currency. It is insisted, also, that if
this court could allow the enforcement of a contract for treasury notes of
the late Confederate States, issued for the purpose of aiding the rebellion
against the general government, yet the proof in this case shows the
plaintiff in error often tendered the full payment of the note sued on, but
the same was not accepted. No brief for the defendant in
error has been furnished to the reporter. MORRILL, C. J. Defendant's answer alleges that
the consideration of the note was Confederate money. The testimony
fully establishes the facts set forth in defendant's answer. The judge
charged the jury that they should find the value of Confederate money at the
maturity of the note and render verdict thereon. The several exceptions to the
pleadings and the orders and rulings in the district court call upon us to
decide: 1. Whether the consideration, as
alleged in the answer and admitted to be proved, is illegal. 2. Whether a note given for an
illegal consideration is void. 3. Whether the facts set forth in
the answer, to show the note void, can be pleaded. As to the first question:
Confederate money was and is an obligation or a promise of the Confederate States
to pay a certain number of dollars, therein mentioned, to bearer in a
specified time after a treaty of peace between the Confederate States
and the United States. It did not purport to be of any value unless the
rebellion should prove to be a success. The necessary consequence whereof
was, that every one who was the holder and owner of these notes was or would
be interested in the success of the rebellion in ratio proportional
to the amount which he might own. If we could conceive of any citizen of
the United States to be indifferent as to the success of the two great powers,
the possession and ownership of these promises would have a tendency to
create a bias in favor of the Confederate government. But when we take into
consideration that these Confederate promissory notes were the only
money, or substitute for money, that the Confederate States had to carry
on the war, without which the war would have been of short duration, and the
rebellion would have terminated in a comparatively brief space of
time, and that its value depended upon its circulation, the inference necessarily
follows that whoever aided in its circulation and treated it as of
value, in the same degree aided the rebellion and injured the United
States. With this view of Confederate
money, and taking into consideration that the supremacy of the constitution of
the United States and the laws passed in pursuance thereof are expressly
acknowledged in the original law of this state, we cannot regard a
contract for buying and selling Confederate money as legal. If the war of the
Confederate States against the United States was illegal, it needs no great
intellect to discover that every act of all who assisted in this war was pro tanto illegal. *3 The second question is,
whether a note given for an illegal consideration is void? In 1 Pars. Con. 380, it is
stated: "In general, if any part of the entire consideration for a promise, or
any part of an entire promise be illegal, whether by statute or at common
law, the whole contract is void." In 1 Story, Con. § 485, after
stating, "contracts are sometimes said to be illegal, either because the
consideration of the promise is illegal or because the promise itself is
illegal," he proceeds: "Every executory contract, the consideration of
which is illegal on either side, is void." We do not deem it necessary to
multiply authorities, but will conclude our remarks on this point by
repeating the words of Chief Justice HEMPHILL, in JAMES v. FULCROD, 5 Tex. 520:
"That contracts against public policy are void, and will not be carried
into effect by courts of justice, are principles of law too well
established to require the support of authorities." The other question is the last
proposed, Whether a party is permitted to plead this illegality? This is,
in fact, the main, if not the only, question in controversy in the case. With
great plausibility authorities are arrayed, going to show that parol evidence cannot be admitted to vary or explain or contradict a written contract,
unless fraud, etc., are alleged. That the contract is free from all
ambiguity, and that there is no pretense of imposition, etc.; and, however
onerous it may seem, yet courts have no power to grant relief where there is no
concealment or violation of the rules and laws of equity. It may be true
that courts will never interpose their power for the benefit of a party, where
he has made a contract, with a full knowledge of all the facts and
without restraint, however onerous it may be. At the same time courts will
never give any aid in enforcing an illegal contract. The inquiry is not
whether parol evidence can be admitted to explain or alter a written
contract, but whether the contract really was illegal; and this inquiry is not
for the relief or benefit of a party, but because courts will never be the
tools or agents or instruments for doing what is contrary to law. The interest of either or both of
the parties is not considered where both have attempted to do an illegal
act. "No polluted hand shall touch the pure fountain of justice."
Whatever the supposed contract may be, whether the illegality is apparent or
concealed, as soon as it may appear evident to a court that it is illegal, it is
no contract, because it is illegal. And a contract is no less illegal
because it is sugar-coated. Courts will divest all illegal acts of their
verbiage, and having discovered their nude deformity, drive them out of the
temples of justice. "Procul, O procul, este profani." *4 In Cow. & Hill's notes to Phill. Ev. part II, p. 612,
note 304, we find: "The rule confining the operation
of parol evidence within the limits of strict exposition or
interpretation assumes that the instrument has a legal existence and is valid. Testimony
to show it to be void is always pertinent, no matter who are the parties or
in what court the question arises." In the case of PARKER v. DECKER,
10 Mass. 273, the court said: "By the common law deeds of conveyance or
other deeds, made contrary to the provisions of a general statute
or for an unlawful consideration, or to carry into effect a contract unlawful
in itself, or in consequence of any prohibitory statute, are void ab
initio, and may be avoided by plea, or on the general issue of non est factum; the illegality may be given in evidence to show that the writing executed
by the defendant is not a deed by any lawful construction or
effect." In PAXTON v. POPHAM, 9 East, 207,
Lord ELLENBOROUGH, in delivering the opinion of the court, said:
"According to the doctrine of the chief justice in COLLINS v. BLANTEM, unless the
obligor were permitted to contravene the condition of the bond by plea,
showing the truth of the transaction, a bond would be made a cover for every
species of wickedness and illegality. It would only be necessary to have a
bond with a condition stating the consideration of it as widely
from the truth as possible. Since the case of POLE v.
HARROBIN, in 1782, it has been generally understood that an obligor is not
tied up from pleading any matter which shows that the bond was given
upon an illegal consideration, whether consistent or not with the
condition of the bond." In 1 Story, Con. § 541, we find:
"If the consideration be illegal, the contract may be avoided by a
proper plea, even though it be a specialty and the illegality be not apparent on
the face of the instrument." In SCHMIDT v. BARKER, 17 La. 264,
the court said: "This court has often held that it will not lend its aid to
settle disputes relative to contracts reprobated by law. It will notice
their illegality ex officio, and allow it, without any plea, at any stage of
the proceedings." In 1 Bouv.
222, it is said, "A contract, according to Pothier,
is a convention or agreement, by which
two or more persons consent to form between themselves some lawful
engagement. All obligations derive their force from the law, and therefore
every obligation supposes a superior law, which binds us to the
performance." We have made these numerous
quotations from elementary writers and reports of the highest authority, and
they all unite in sustaining the positions we have assumed, that a contract,
the consideration or performance of which is illegal, is void. *5 2. That Confederate money,
whether it forms the consideration on the part of the obligor or the obligee of the contract, is illegal. 3. That this illegality can be
pleaded. And as this case falls under the
condemnation of these principles, it is ordered that the judgment be
reversed, and the cause Dismissed. LINDSAY, J. In this case, concurring as I do
in the general conclusion of the opinion delivered by the chief justice
which directs both a reversal of the judgment and dismissal of the cause from
the dockets of the courts, because of the illegality of the contract, yet I
cannot give my official sanction to some of the deductions made from the
authorities quoted and relied upon. I fully concur in the correctness and
just reasoning of those authorities. But in my view they do not warrant the
inferences drawn from them in the opinion, and which would go to the world as
the unanimous opinion of this court if this dissent was not made manifest.
While I fully agree that every contract made in violation of law, whether by parol or in writing, will be, and ought to be, universally declared by the
courts to be a nullity; in other words, that all illegal contracts are and
should be declared void; and, though they may be reduced to writing, that a
plea or defense of illegality may be properly set up and established by parol proof, I am not prepared nor willing to go so far as to unite in the
declaration, as a legal maxim, "that a contract, the consideration or performance
of which is illegal, is void." I cannot give my assent to such a
proposition. A very legal contract might be very illegally performed to
the satisfaction of the contracting parties, and yet there might be no vice in
the contract. Performance is no inherent part of the contract for the
exposition of courts of justice. If the subject-matter about which the
contract is made in writing is legal, and there be no stipulation in it for
performance in an illegal way, parties will not be heard to allege such
illegal understanding. It is the subject-matter about which
contracts are made that constitutes their legality or illegality. And it is
because of the turpitude or unlawfulness of the subject-matter that courts
refuse to entertain jurisdiction of them, and always dismiss them from
consideration. Many a contract, perfectly legal in itself, has been illegally
performed, in the progress of the late war, when paid off in Confederate
money. Where so accepted by the payee voluntarily, it was at least an
accord and satisfaction between the parties, though an illegal performance.
Thus much I feel myself bound to say in justice to my own legal
convictions. |
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