Lemuel Dawson v. The State, 33 Tex. 491

Walker, J. At the Spring term of the District Court for the county of Rusk, in the year 1869, the appellant was indicted, tried and found guilty of the murder of George Woodlin. An appeal is taken to this court. It is urged that the court below erred in overruling the motion in arrest of judgment. The motion was predicated upon the alleged insufficiency of the indictment. The indictment is subject to verbal and grammatical criticism, hut we think it cannot be claimed that the awkward use of words, and clumsy construction of some of the sentences, render it bad in law.

We think it would have been good at common law, and is doubtless good under our code. The language is perhaps more difficult for a skillful linguist and grammarian to understand, as well indeed as the intention of the pleader, than the same would be to one relying less upon the rules and principles of our language as used by the educated; but we think the offense is “ charged in plain and intelligible words.” (See Paschal’s Digest. Art. 2863.) It is urged that the court erred in the charge to the jury, both as it was given and refused.

Believing that this exception is not well taken, we can furnish no better reason for our opinion than that given in 27 Texas, 758, in Johnson v. The State. The learned judge in deciding that case remarks: “ Though is every case of felony the court is required by statute to give a written charge, whether asked by the parties or not, yet it is only necessary for the court to give such instructions as are applicable to every legitimate deduction which the jury may draw from the evidence.” We think the charge in this case was all that the rule of law, as thus correctly laid down, requires.

There was no evidence in the case from which any other legitimate deduction could have been drawn than that which the jury did draw; nor is the contrary even claimed in the argument.

But this court, in the case referred to, have laid down the rule which applies to this case: “ When a party who has taken the life of another, relies upon threats against his own life, as an element in his defense, he must show that at the time of the killing, some act was done by the deceased from which he, the accused, might reasonably infer an intention of immediately carrying such threats into effect, in which case the accused was justified in the use of such means as were within his power for his own defense, and if death ensued thereby the homicide was justifiable.” In the present case there was no act of any kind, on the part of the deceased, toward the defendant until the defendant had shot him, when the defendant and deceased were seen clinched and struggling, and the defendant literally cutting the deceased to pieces with a knife.

The deceased, being unarmed, was shot from behind as he was leaving the gallery of the store house, and at a moment when he apparently was expecting no assault, and was not prepared to repel one. Art. 2270, Paschal’s Digest, is an embodiment of the legislative mind on this subject, and the rule in Johnson’s case exactly accords with the law as therein set forth; and it is greatly to be regretted that this wise and wholesome rule should ever have been disturbed by this -court. This leads to a consideration of the later case of Pridgen v. The. State, decided at the October term, 1868, at Austin.

This case was decided by a divided court, two of the five judges on the bench dissenting. We cannot regard the case as having been correctly decided, nor do we think the effect of such a rule as is therein laid down would be otherwise than productive of the most serious harm to the public. This court, therefore, will cease to regard the ruling in that case as of any binding effect whatever upon the courts of the State, and we do formally reaffirm the doctrine as quoted from the case of Johnson against the State. We are now brought to consider another of the objections urged against the judgment in this case.

The indictment charges the appellant with the murder of George Woodlin. We find in different parts of the record, this name is spelled “Woodlin,” “ Woodline,” “ Woodlon ” and “ Woodland.” If there was any variance between the indictment and the proof, it was not noticed-at any stage of the proceedings below. We incline to think, from very careful inspection of the record, where we find bad spelling, and careless repetition and omission of words, that this diversity in orthography, arises from carelessness in copying the record. Mi’.

Chi tty in his valuable work on Criminal Law, vol. 1, page 211, tells us: “Indeed,- with respect to this matter, certainty to a common intent is all that the law requires, and if the description be sufficiently explicit to inform the prisoner who are his accusers, the indictment may be • supported ; but it is in general necessary to set forth the names of third persons with sufficient certainty.” Again at page 170, this learned author says, “ on the application of this rule, and the degree of certainty, there are a variety of decisions in the books, and very great niceties have been allowed to prevail, as we shall see in the course of our inquiries.

This circumstance has frequently been regretted by able judges as offering too many opportunities for the escape of prisoners, to the encouragement rather than to the depression of crime.” Thus Lord Hale observed, 2 Hale, 193, “ That the strictness required in indictments lias grown to be a blemish and inconvenience in the law, and the administration thereof; that more offenders escape by the over easy ear given to exceptions to indictments than by the manifestation of their innocence; and that the grossest crimes had gone unpunished by reason of these unseemly niceties.” This is old law, but its philosophy and sound sense have lost nothing of them force, and our Legislature will have acted in vain on this subject if courts still indulge in this “ unseemly nicety.” On the trial, neither the court, the jury, the counsel, the witnesses, nor the appellant appear to have been a-ware of any variance between the name of the deceased as spelled in the indictment, as used by the court, the attorneys, and witnesses; and this fully convinces us that the doctrine of idem, sonans should apply here, unless the clerk has misspefled the name in the record with reiterated carelessness.

This we believe to have been the case. We now come to examine the last reason urged by appellant’s counsel for setting aside this judgment. It is said that since the trial the rigor of the law has been relaxed and the punishment ameliorated. We confess we are unable to see in what manner.

Article 14 of the Criminal Code furnishes us the following rule : “ When the penalty for an offense is prescribed by one law, and is altered by a subsequent law, the penalty of such second law shall not be inflicted for a breach of the law committed before the second shall have taken effect.

In every such case the offender shall be tried under the law in force when the offense was committed, and if convicted, punished under that law, except that when by the provisions of the second law, the punishment of the offense is ameliorated the defendant shall be punished under such last enactment, unless he elect to receive the penalty prescribed by the law in force when the offense was committed.” But we are referred to

section 8,

article 5 of the new Constitution, and it is claimed that by this

article the prior law is repealed, or ameliorated. The

article reads thus : “In the trial of all criminal cases, the jury trying the same shall find and assess the amount of punishment to he inflicted, or fine to he imposed, except in cases where the punishment or fine shall be specifically imposed by law; provided, ohat in all cases where by law it may be provided that capital punishment may be inflicted, the jury shall have the right to substitute imprisonment to hard labor for life.” Now, this can neither he said to be a repeal nor an amelioration of the former laws, for the jury may still assess the death penalty, in their discretion.

But they could not do it without legal authority, and the law is therefore still in force; and all that can he claimed for this

section of the Constitution is that it vests in the jury a power of commuting punishment heretofore vested in the Executive. For the reasons assigned, the judgment of the district court is affirmed. Affirmed.