Jake Johnson v. The State, 33 Tex. 570

Walker, J. The appellant was tried and convicted for the murder of B. W. Loveland, at the Spring term of the Criminal Court of Harris county. There are six assignments for error brought to this court, which are as follows: First—The court erred in overruling the special pleas of the1 defendant to the jurisdiction of the court. Second—That the court erred in sustaining the exception of the-State tp the pleas of the defendant to the jurisdiction of the court. Third—The court erred in overruling the special exception to the indictment.

Fourth—The court erred in allowing the State of Texas to take up the case of The State v. Julius Mitchell, who was- jointly indicted with the said defendant while the trial of the defendant was in progress.. Fifth—The court erred in refusing the charge asked by the defendant. Sixth—The court erred in overruling the motion for a new trial. On the first of these exceptions to the jurisdiction, it is contended that the court before whom the case was tried had no legal existence. It was a court created by the Legislature of 1866, and reference is made to the act of Congress passed March 2, 1867 ; and the

preamble to the act is thus cited : “ Whereas, No legal State governments or adequate protection for life or property now exists in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas and Arkansas ; and whereas, it is neces-sary that peace and good order should be enforced in said States,, until loyal and republican State governments can be established, therefore,” etc. The first and second sections of the act go on to provide a mode-of governing the rebel States by the military authority of the' government. The third

section reads as follows: “And be it farther enacted, That it shall be the duty of each officer assigned as aforesaid to protect all persons in their rights of persons and property, to suppress insurrection, disorder and violence, and to punish or cause to be punished all disturbers of the public peace and criminals; and to this end he may allow local civil tribunals to take jurisdiction of and to, try offenders,” etc. This

section clearly recognizes the existence of local civil tribunals, with competent jurisdiction to try offenders ánd criminals, and it is perhaps useless to say that the military commanders, as. well as this court, have never doubted the legal existence of these civil tribunals.

The military commanders were fully authorized, in certain cases, to adopt other modes of trial; but, we believe, they have uniformly preferred that persons accused of crime should be tried by the civil courts when there was even a remote probability of the end's of justice being met, and have used the military authority with great reluctance and moderation. ' The acts of Congress passed March 2 and March 28, and July 13,. 1867, gave to the rebel States provisional governments which were intended to make as few innovations upon the civil authorities, and do as little violence to the popular ideas of State government as possible under all existing circumstances.

The national legislature used its legitimate powers with moderation and magnanimity, endeavoring to encourage the formation of republican governments in these States, and bring the people back to a due appreciation of law, and the liberty which is secured to the free enjoyment of every citizen under the Constitution of the United States. The court in which the appellant was tried was one of the local civil tribunals found in existence at the time the reconstruction laws were passed, and was not abolished by them, nor by any order of the commanding generals.

It derived its existence from the same source from which the legal existence of this court emanates, from which we were allowed to call a convention to frame a constitution, the people'were called upon to vote upon its adoption, to elect a governor, and choose members of the legislature and other officers. We have no officer in any department of our present government chosen under the Constitution of 1869. The Governor, Lieutenant Governor, heads of departments, members of the Legislature and local officers, all owe their official existence to the laws of Congress before referred to.

The courts whieh have been recognized by these laws, and the officers appointed to administer them, had an existence prior to the enactment of these laws themselves, and the judiciary of the State to-day is the only branch of the government which owesjits existence .to laws enacted by the people of Texas; whilst at •.the same time, the judges have, in perhaps every instance, been appointed by the military commander of the fifth military district, yet they have been appointed in pursuance of laws already existing at the time of the passage of the reconstruction laws, which have never been set aside by Congress, or repealed by any authority so as to affect the legal existence of the courts.

It is very true that we have adopted a new constitution, and under it have been readmitted to our former position in the Union ; but we have elected no Legislature, no Governor, no officers of any kind under it; but, under the reconstruction acts, we elected all these officers, expecting them to go forward, and by necessary legislation, organize a government for the State under it, and under the Constitution, laws and treaties of the United States. The first

section of the bill of rights in the Constitution of 1869, reads thus: “ The Constitution of the United States, and the laws and treaties made and to be made in pursuance thereof, are acknowledged to be the supreme law; that this Constitution is framed in harmony therewith,, and in subordination thereto, and that the fundamental principles embodied herein can only be changed subject to the national authority.” This constitution, then, did not pretend to abrogate the authority of the laws under which it was framed, and without which it would have had no existence, but it is intended in due time, and under proper initiatory legislation, to furnish the people a permanent law for their government, paramount, except as to the Constitution and laws of the United States; and to them by its own terms, it is in subordination.

General orders, Ho. 74, dated headquarters, fifth military district, April 16. 1870,

section four, reads thus: “ All civil officers will continue in the discharge of their present duties until relieved by qualified successors, to whom they will turn over all' records and public property pertaining to their respective offices.” But this i? no new principle of law; on the other hand, it is the universal rule founded in the necessities of governments, that there shall be no void,' hiatus, or interregnum in the offices of' government.

That the king may die, or be dethroned, or cease to reign, are all facts admitted in monarchies, but none admit that the office of king can lapse; and upon the same principle the office of governor, of legislators, and of judges, will always exist. Yet the incumbents may and often do change, the old officer holding until his successor is prepared to take his place, except when vacancies occur unexpectedly, and when it is frequently provided that the office shall devolve upon some other designated person, as in the case of the Presidency, and Gubernatorial office of the different States.

We are, therefore, clearly of the opinion that the court in which appellant was tried was a legal tribunal of competent jurisdiction to try such cases, and that the pica to the jurisdiction was properly overruled. The charge as asked by the defendant’s counsel, and refused by the court, had been substantially given in the general charge, and was not improperly refused for this reason, nor was it. entirely free from legal objection.

There is nothing in the law which forbids a jury from believing the evidence of an accomplice; but that the law will not support a conviction entirely upon his evidence, appears to be the better opinion of this court, and is the positive law of some of the States. There was no error in allowing the trial to pause until the case of the State against Jules Mitchell, could be called for the purpose of allowing a nolle prosequi to be entered, preparatory to offering him as a ‘ witness. It was probably a step necessary to be taken to serve the ends of justice in this case.

Nothing was done in the case to interrupt the trial. The State wanted to use Mitchell as a witness, and wished first to relieve him from an indictment which was pending against him for the same offense for which Johnson was tried, and there was no error in what was done. But we are asked to grant a new trial in this case for supposed error in the court below, overruling the special exception to the indictment on the ground that the grand jury was not drawn and summoned according to law. This exception was in the nature of a challenge to the array, and could not be sustained under

Article 363, Criminal Code. (See also Paschal’s Digest, Art. 2868.) The case of Martin against the State, 22 Texas, 215, declares what the law is under the code, and becomes authority in this case. We have examined the record in this case with much care, and are unable to find any cause for reversing the judgment of the court below, and it is therefore affirmed. Affirmed.