Charles Holden v. The State, 1 Tex. Ct. App. 225

Winkler, J. This proceeding was had under the state Constitution of 1869, which required all prosecutions to be carried on in the name and by the authority of the state of Texas, and to conclude “ against the peace and dignity of the state.” Art. 5, sec. 15. The former Constitution of 1845, which was in force at the date of the adoption of the Code of Criminal Procedure, contains the same provision. The Code of Criminal Procedure,

Article 395, defining the-requisites of an indictment, says, in the 8th subdivison of the Article, “the indictment must conclude ‘against the-peace and dignity of the state.’ ” Pasc. Dig., Art. 2863. The omission to state in the indictment that the offense-was committed ‘ ‘ against the peace and dignity of the state, ’ ’ as required by the Constitution then in force, and by the-Code then and now in force, has repeatedly been held by our supreme court to be fatal to the indictment. In the-case of The State v.

Durst, 7 Texas, 74, the court say: “It is scarcely necessary to say that the courts have no authority to dispense with that which the Constitution requires.” The opinion in The State v. Durst is quoted approvingly in the case of The State v. Sims, decided at the Austin term,. 1875, of the supreme court; and the learned Chief Justice-Roberts adds: “ It (the omission to conclude with the words. “ against the peace and dignity of the state”) has been held to be a fatal defect, whether excepted to or not.” See, also, the cases cited in the opinion of the court in The State v. Sims, 43 Texas, 521.

In the indictment in this case this omission is made, and1 on that account alone the conviction had would be set aside. Sutton v. The State, 41 Texas, 513; and White v. The State, and Trammell v. The State, decided by this court at the Austin term, 1876, ante pp. 211, 121. Two other propositions are discussed by counsel: 1st, as to-the jurisdiction of the court in which the trial was had; and, 2d, the correctness or otherwise of the charge of the court to the jury. We will notice these propositions in inverse order. Then as to the question, did the district judge err in his. instructions to the jury?

It is contended on the part of the accused that it is the duty of the judge, on a trial for murder, to charge on the different degrees in murder as a rule ; that to refuse to charge as to murder of the second degree is equivalent to charging that the defendant is guilty of murder in the first degree, and is, consequently, a charge as to the weight of evidence. Such seems to be the purport of his argument. We do not so understand the law.

It is evidently the intention of the framers of the law that-the judge who presides at the trial of a felony shall take the-responsibility of instructing the jury as to the law of that particular case. Whilst the jury are exclusive judges of the-, facts, and an invasion of their prerogative cannot be allowed,, yet they are not the judges of the law in any case. “ They are bound to receive the law from the court and be governed; thereby.” Code of Cr. Pro., Art. 593; Pasc. Dig., Art. 3058.

It is the duty of the judge to state plainly to the-jury the law of the case, but it is beyond his province to» discuss the facts, or use any argument in his charge to rouse, the sympathies or excite the passions of the jury. Code of Cr. Pro., Art. 595 ; Pasc. Dig., Art. 3060. Either party may ask the judge to give a charge, but the judge may give it or not, as in his judgment would be proper. Pasc. Dig., Art. 3061.

But it is the imperative duty of the-judge, in all cases of felony, whether asked to do so or not,, to give written instructions to the jury, ‘ ‘in which he shall distinctly set forth the law applicable to the case.” Code of Cr. Pro., Art. 594; Pasc. Dig., Art. 3059. In the language of the supreme court in Hudson v.

The State, 40 Texas, 15, “ the charge of the court should instruct the jury upon the law applicable to the case as made by the proofs.” Again, counsel for the appellant argues that the court can refuse to charge upon the degrees of homicide below murder in the second degree, because, when the killing is proved, it requires evidence to reduce the offense to manslaughter, and it is the province of the court to decide whether there is any evidence on a given point; but, he ■continues to argue, the case is different in regard to evidence necessary to raise the offense to murder in the first •degree.

Taldng in view that these matters of different -degrees in murder are but different degrees of the offense of murder—to be visited by a degree of punishment corresponding with the turpitude shown by the proofs—we hold that it would be better to commence at the offense of murder and give the jury instructions as to what it takes to constitute murder, and explain the law as to malice express and implied, and, having done so, to then proceed to charge as to the degrees of homicide or not, as in the judge’s .judgment may be proper after he shall have heard the evidence.

Say the court in the opinion last quoted from: “ When the facts in evidence shall conduce to establish that the defendant may be guilty of something less than that with which he is charged, where the offense admits of degrees, the difference between the different degrees should he explained to the jury by instructions from the court.” Hudson v. The State, 40 Texas, 15. The practice seems to be settled that the court, in charging with reference to the law of offenses admitting degrees, ■should commence with the highest degree of the offense the proof justifies.

If the judge should believe from the evidence that the party accused is guilty of murder in the first -degree, he is not required to do more than charge as to .murder in the first degree. If, however, the evidence ■should, in the mind of the judge, show that the accused is guilty in a less culpable degree, he should then charge as to the second degree of the offense; and a case would not be ■reversed because of a refusal on the part of the judge to charge as to the lesser degrees of the offense, unless it'should appear from the evidence that such charge should have been given.

Murder may be of the first degree and punishable with death, or the jury, under the former Constitution, could commute the punishment to imprisonment for life; and so murder may be of the second degree and punished less severely. The evidence determines the degree, and the-judge should charge as to either one or both degrees, as the proof requires, and, if he errs, the remedy is by appeal. It is not error, in a proper case, for the court to decline to do more than charge the jury as to murder in the first degree. In Hudson v.

The State it was argued that the facts did not present a case of murder in the first degree, or at least that the court should have instructed the jury on the degrees-in murder.

But the court say: “ There is nothing in the evidence that made it necessary for the court to explain to the jury the degrees in murder, or to instruct them upon-the law applicable to the difference between murder in the first and second degrees, or the constituents of manslaughter-as distinguished from murder.” From this reasoning it must be apparent that the propriety or impropriety of giving- or withholding a particular charge must be determined from the evidence alone. In Jones v.

The State, 40 Texas, 188, it appears from the-x opinion of the court that the court below confined the charge to killing upon express malice, and did not draw the distinction between murder in the first and murder in the-1 second degree; yet the court declined to set aside the conviction of murder in the first degree because the evidence justified the verdict.

From these authorities we conclude, 1st, that, on the trial-of a felony case, the judge who presides at the trial is responsible for the law applicable to the particular case-then on trial; 2d, that the court is required to instruct the-jury as to the law applicable to that particular case, as developed by the evidence adduced on the trial; 3d, that it is not indispensable that the court should charge as to different degrees of the offense charged, unless in its judgment the •evidence to be passed upon by the jury renders such charge necessary in order that the jury may understand the application of the facts to the law governing the different degrees -of the offense; though, if after hearing the evidence the court should be in doubt, then the law as to the less offense should be charged; and, 4th, that the failure to instruct the jury as to the different degrees of an offense will not necessarily be ground of reversal, unless this court, on an inspection ■of the evidence as shown by the record, shall be of opinion that the evidence required the instruction as to the different ■degrees of the offense.

This appellant is charged with killing with express malice. Murder committed with express malice is murder in the first •degree. Penal Code, Art. 608; Pasc. Dig., Art. 2267. “ Express malice is when one, with a sedate and deliberate mind and formed design, doth kill another; which formed ■design is evidenced by external circumstances discovering that inward intention, as by lying in wait, antecedent menaces, former grudges, and concerted schemes to do him •some serious bodily harm.” 4 Bl. 198; McCoy v. The Slate, 25 Texas, 33. This prosecution is for a killing upon express malice.

We have, carefully examined the charge complained of, and, taking it all together, we are unable to find that it was not warranted by the evidence. As to the question of jurisdiction: The indictment states that the grand jury was charged to inquire of offenses committed in Clay and Wilbarger counties, and the offense is •charged to have been committed in Wilbarger county. The prosecution was in Clay county, and the evidence shows the killing to have been in Wilbarger county. As a general rule, prosecutions should be in the county where the offense is committed.

This is the general rule; but to this there are exceptions. It is not pretended that this case is within any of the exceptions to the general rule; •on the contrary, it is claimed by the state that Clay county had jurisdiction, on the ground that Wilbarger county, being unorganized, had been attached to Clay county for judicial purposes. This leads us to notice the several acts of the legislature bearing upon the subject. In 1860, it seems,

an act was passed attaching certain •counties, and among them Clay and Wilbarger, to Montague -county, for judicial purposes, and providing that, when the county of Clay is organized, the counties of Wichita, Wilbarger, Hardeman, and Greer shall belong to the county of •Clay.

In 1866, November 6, the legislature passed another .act providing that the counties of Clay, Wichita, Wilbarger, Hardeman, and Greer be attached to the county of Montague for judicial and other purposes, and that, when the county of Clay is organized, the counties of Wichita, Wilbarger, '.Hardeman, and Greer shall belong to the county of Clay.

In both these acts the evident intention was to attach, temporarily, the counties of Clay and Wilbarger to Montague county, and that, upon the organization of Clay county, Wichita, Wilbarger, and other counties were to be attached to the county of Clay for judicial and other purposes. It is hardly to be supposed that, by the employment of the words “belong to Clay,” the legislature intended to incorporate those counties with Clay permanently, but only to attach them to Clay for judicial purposes, just as Clay and Wilbarger, and other counties, had before that time been ■attached to Montague county. In 1873

an act was passed providing for the organization •of Clay county, and by the most liberal construction, which is conceded by appellant’s counsel, carried to it for judicial purposes the county of Wilbarger, unless, indeed, the act of 1866 had been repealed by legislation had subsequently to the passage of the act of November 6, 1866, and prior to the organization of Clay county, in 1873. In 1869 the organic law of the state was changed by the adoption of a new Constitution, which went into operation on the 30th day of March, 1870.

By this Constitution it was provided that “the state shall be divided into convenient judicial districts, for each of which one judge shall be appointed, * * * who shall hold a court three times a year in each county thereof, at such time and place as may be prescribed by law.” Art. 5, sec. 6. After the Constitution of 1869 went into effect the legislature passed

an act of which the caption is as follows: “

An act to provide for districting the state of Texas into judicial districts,” which was approved July 2, 1870. From this act of July 2, 1870, the following extract is made: “ Sec. 12. The twelfth district shall be composed of the counties of Grayson, Cook, Denton, Montague, and Wise, and the following unorganized counties shall be attached to-this district for judicial purposes, viz.: Archer, Wichita, Baylor, Wilbarger, Knox, Hardeman, and Clay.” Subsequently, at the same session of the legislature,

an act was passed entitled “An act prescribing the times of holding of the district courts in the several judicial districts of the state,” approved August 10, 1870, from which the following is an extract: “ Sec. 13.

The district courts of the twelfth judicial district shall be holden at the times hereinafter specified,, to wit, * s * in the county of Montague on the fourth Mondays in October, February, and June, and may continue in session two weeks ; * * * that for judicial purposes-the counties of Clay, Hardeman, Knox, Wilbarger, Baylor, Wichita, and Archer shall be attached to the county of Montague.” It is contended on the part of the appellant, and denied by counsel on the part of the state, that the act of 1870-repeals 'the act of 1866.

By the act of November 6, 1866, the counties attached to Montague for judicial purposes were Clay, Wichita, Wilbarger, Hardeman, and Greer; and of these the four counties of Wichita, Wilbarger, Hardeman, and Greer were to belong to Clay when organized. By the act of the 2d of July, 1870, the following unorganized counties were attached for judicial purposes to the twelfth judicial district, viz.: Archer, Wichita, Baylor, Wilbarger, Knox, Hardeman, and Clay; and by the act of the 10th of August, 1870, the same counties last above named were attached for judicial purposes to the county of Montague.

What is the proper construction of these several statutes with reference to the jurisdiction of Clay county over a felony charged to have been committed in Wilbarger county on the 8th day of May, 1874? • It would, perhaps, be sufficient to say that the law of 1866 is repealed by the law of the 10th of August, 1870. The repeal is in these words : “ That all laws and parts of laws conflicting with the provisions of this act be, and the same are hereby, repealed.” Sec. 38 of the act'of August 10, 1870; Pamphlet Acts of the twelfth legislature, called session, p. 59.

The act of 1866, which attaches the counties of Clay, Wichita, Wilbarger, Hardeman, and Greer to Montague for judicial purposes until Clay county should be organized, is evidently in conflict with the act of the 10th of August, 1870, which attaches these four counties, and the three other counties of Knox, Baylor, and Archer, to Montague—not temporarily, until some other county (Clay, for instance) shallbe organized, but, apparently, permanently.

By the first-named act the county of Wilbarger would have been attached to Clay county after its organization, in 1873, but for the fact that before its organization the legislature attached both Clay and Wilbarger to Montague county, leaving Clay county, upon its organization, stripped of the counties of Wilbarger and others which the legislature, in 1866, intended to attach to Clay for judicial purposes on its organization.

But if the several enactments be reconcilable, so that all can stand, and if the act of August 10,1870, did not by its terms repeal the act of 1866, still, the later act operates a repeal of the former one on another ground, which is that the legislature, by the two enactments of July 2 and August 10, 1870, embraced the whole subject of laying off the state into judicial districts and providing for holding courts in the several counties, as it was authorized to do by the Constitution of 1869. Art. 5, sec. 6.

That this position is true is maintained on the authority of eminent elementary writers and by numerous adjudicated cases. Says Mr. Sedgwick: 66The rule is, as we shall constantly see, cardinal and universal, that, if the statute is plain and unambiguous, there is no room for construction or

interpretation.” Sedgw. on Const, and Stat. Law, 231. The acts of July 2 and August 10, 1870, are plain and unambiguous, and must stand as the legislative will. If a subsequent' statute be not repugnant in all its provisions to a prior one, yet, if the later statute was clearly intended to prescribe the only rule which should govern, it repeals the former one. 3 How. 636. Affirmations in statutes that introduce a new rule imply a negative of all that is not within the provision. 1 Kent, 467. The following is an extract from the opinion of the majority of the court on review of the case of Bryan v.

Sundberg, 5 Texas, 424 : 66 It is true that a construction which repeals a former statute by implication is not to be favored, and it is also true that statutes in pari materia, and relating to the same subject, are to be taken and con-«trued together, because it is to be inferred that they had one object in view, and were intended to be considered as constituting one entire and harmonious system.

But when a new statute in itself comprehends the entire subject and -creates a new, entire, and independent system respecting the subject-matter, it is universally held to repeal and supersede all previous systems and laws respecting the same subject-matter. Such is peculiarly the case with the act under ■consideration.

It was framed under a new Constitution, which reorganized the entire frame of the government—of which it was a consequence that every person who should thereafter exercise the functions of any state office must look •solely to that Constitution, and the laws enacted subject to it, for his authority and powers.” So, here, these later acts of 1870 were passed in pursuance of the then new Constitution of 1869, and sanctioned by its provisions.

In a recent case in Nevada this rule is laid down: “A subsequent statute revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, on the principles of law as well as reason and common sense, operate to repeal the former one.” The State ex rel. Flack v. Rogers, 10 Nev. 319. It is, however, insisted further by counsel on the part of the state that, although the act of 1870 may, if constitutional, repeal the act of 1866, the act of 1870 is in conflict with

section 12,

Article 13, of the Constitution of 1869, in that, as counsel contends, it embraces an object not embraced in the caption of the act, and is, therefore, in conflict with that provision, which is as follows: “ Every law enacted by the legislature shall embrace but one object, and that shall be expressed in the title.” The title of the act of July 2, 1870, is as follows: “

An act to provide for redistricting the state of Texas into judicial districts.” The title of the act of August 10,1870, is as follows : “An act prescribing the times of holding the district courts in the several judicial districts in the state.”' The Constitution of 1869 provides in

Article 5 : “ Sec. 6.

The state shall be divided into convenient judicial districts, for each of which one judge shall be appointed by the governor, by and with the advice and consent of the senate, for a term of eight years, who shall, after his appointment, reside within the district, and shall hold a court three times a year in each county thereof, at such time and place as may be prescribed by law.” This extract is made for the purpose of showing what authority was given, by the Constitution of 1869, on the subject of reorganizing the district courts under the new order of things after the late civil war had ended.

There can be no doubt that it was the intention of the framers of this Constitution to organize the district courts-for the whole state, and to provide for holding courts regularly in all the counties of the state. So far there is no difficulty; but, when the legislature assembled under this Constitution, there were certain unorganized counties along the northern and western borders.

The Constitution evidently intended that the courts should be held in all the counties of the state; the legislature provided, as it had authority to do, for holding the courts in the organized counties, but it was impracticable to provide for holding-courts in the unorganized counties, because they did not contain a sufficient population. The law-makers must be supposed to have enacted laws with reference to the situation of the country.

Is it to be-supposed that they, as guardians of the interests of the-whole people—as well the pioneer on the frontier as the-citizen of the more populous portions—intended either that the scattering population of the border should be excluded entirely from the benefits of the judicial department of the-government, or that these unorganized counties should become places of refuge for violators of the law, and thus place them beyond the reach of its power, and where they could pursue their vicious inclinations unmolested?

Such a supposition is not to be indulged; yet such would be the inevitable result unless there is authority somewhere to punish. This authority, it is believed, exists in the legislature ; and the legislature, construing its constitutional power for itself, has attempted to obviate the difficulty by attaching the unorganized counties for judicial purposes to those that were organized, and thus in some degree affording their citizens the protection of the law.

But it is contended that all this has been attempted in a manner unauthorized by the Constitution in force at the time; that is, that inasmuch as the title of the act, or rather the titles of the two acts, of 1870, by embodying the provisions above referred to—attaching certain counties for judicial purposes to certain other counties—render the acts obnoxious to the constitutional requirement that “ every law enacted by the legislature shall embrace but one object, and that shall be expressed in the title.” Judge Cooley, in his work on Constitutional Limitations, after discussing the origin and necessity of incorporating provisions of this character, treats of the purposes to be •effected, as follows: ‘6 It may, therefore, be assumed as settled that the purpose •of these provisions was, first, to prevent hodge-podge or ‘ logrolling ’ legislation; second, to prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles give no intimation, and which might, therefore, be •overlooked and carelessly and unintentionally adopted.; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they shall -so desire.” Again: “The general purpose of the provisions is accomplished when a law has but one general object in view, which is fairly indicated by its title.

To require every end and means necessary or convenient for the accomplishment of this general object to be provided for by a separate act, relating to that alone, would not only be unreasonable, but would actually render legislation impossible.” Cooley on Const. Lim. (3d ed.) 143, 144. “ It could not be meant that the word 6 object ’ should be understood in the sense of 6 provision,’ for that would render the title of

an act as long as the act itself. Various and numerous provisions may be necessary to accomplish the one general object which this act of the legislature proposes. Nor could it have been intended that no act of legislation should be constitutional which had reference to more than one ultimate end; for

an act having one main or principal object in view may incidentally effect or be promotive of others ; and it would be impossible so to legislate as to prevent this consequence. The intention doubtless was to prevent embracing, in

an act having one ostensible object, provisions having no relevancy to that object, but really designed to effectuate other and wholly different objects, and thus to conceal and disguise the real object proposed by the provisions of

an act under a false or deceptive title.” Tadlock v. Eccles, 20 Texas, 792. Other authorities might be cited, but these are deemed sufficient to show that the general tendency is to hold

an act constitutional so long as the legislation is confined to the general object mentioned in the title of the act. The two acts of July 2 and August 10, 1870, are but two branches of one general object, and are not in conflict—the general object being to organize the district courts and to provide for the due administration of the laws in all the counties of the state.

The legislature, in furtherance of this general object, did not transcend its constitutional bounds by attaching certain unorganized counties for judicial purposes 'to certain other organized counties in which provision was made for administering the law. We have not overlooked a provision in the Constitution of 1869 which authorized the executive, on certificate of the district judge, under certain circumstances, to attach counties where the courts could not be held, “ from the want of qualified jurors, or other cause,” to others for judicial purposes. Art. 12, sec. 24.

This is believed to be but cumulative of the powers conferred for organizing districts and holding courts throughout the state. We are of opinion that the act of July 2 and the act of August 10, 1870, on the subject of organizing judicial districts and providing for holding regular terms of the courts, are in harmony with the provisions of the Constitution of 1869 ; and, inasmuch as these acts were intended to embrace, and do embrace, the whole subject, they repeal all former laws on the same subject.

And inasmuch as the act of 1866—which provided that, on the organization of Clay county, Wilbarger county (with others) should be attached to Clay county for judicial purposes—had been superseded by the two acts of 1870, above referred to, prior to the organization of Clay county, in 1873, Clay county and the district court thereof had no jurisdiction over an offense committed in Wilbarger county in the year 1874; and, because of this want of jurisdiction, the judgment of the district court of Clay county rendered in this case must be reversed, and this prosecution be dismissed.

There are other irregularities apparent on the face of the record of sufficient importance to require mentioning. It does not appear from the record that the defendant was arraigned, or that he either pleaded or stood mute. See Early v. The State, decided at this term, post p. 248. The clerk, in making up the transcript, has neglected to observe the rule which requires the transcript to be tied, with the impress of the seal, in wax, over the tie, which is intended as a protection against improper interference with the record after it has been prepared. It is proper these matters should be observed.

Judgment reversed and cause dismissed. Reversed and dismissed.