Robert Carr v. The State, 19 Tex. Ct. App. 635

Hurt, Judge. This conviction was for burglary. The appellant filed an application for a change of venue upon the grounds that there existed so great a prejudice against him that he could not obtain a fair and impartial trial; and, 2d, because there existed in said county a dangerous combination against him, instigated by influential persons, by reason of which he could not expect a fair trial. Appellant’s affidavit was supported by that of three persons, to wit, J. N. Perry, Thomas Day and P. D. Ellis.

This application was filed and presented to the court after the State, but before the defendant, had announced ready for trial. The district attorney moved to strike it out because it came too late.

Article 580, Code of Criminal Procedure, provides that the application may be heard before either party has announced ready for trial. This evidently is directory; for, before the change is ordered, all motions to set aside the indictment, and all special pleas and exceptions which are to be determined by the judge, and which have been filed, shall be disposed of by the court. Now, in case of felony, the defendant is not required to except to the indictment or interpose special pleas before the State has announced ready for trial.

After an announcement by the State, defendant can except or plead specially to the indictment, and with these pleadings pending he may apply for a change of venue; but before the change is ordered these pleas should be disposed of by the court. We are of the opinion that the application for the change of venue did not come too late. The district attorney answered the application, denying the existence of such combination, or that there was such prejudice in the county as would prevent defendant from obtaining a fair and impartial trial.

He does not question the credibility of the defendant’s supporting affiants, nor their means of knowledge. We have, however, the affidavits of nine citizens of Gonzales county, controverting the application. It is stated in this affidavit that the affiants believe that defendant can have a fair and impartial trial; that they do not believe that there is any dangerous combination against defendant by reason of which he cannot get a fair trial. They further say that J. N. Perry, Thomas Day and P. D.

Ellis live in the extreme western portion of the county, in the immediate vicinity of where the offense was committed, and that Ellis is a brother-in-law of James Collins, who is also charged with the same offense. They also charge that they believe that the means of knowledge of the said Perry, Ellis and Day is too limited to warrant them in swearing that there is a combination of influential persons in the county against defendant, such as would prevent him from obtain- . ing a fair and impartial trial.

Then follows a statement showing in what part of the county each affiant lived, so as to make it probable that their means of knowledge, relative to the existence or nonexistence of the supposed combination, or prejudice, was good, and at least superior to that of Perry, Ellis and Day. We are not informed by the record what disposition was made of the motion by the district attorney to strike out the appellant’s application. It certainly should not have prevailed, because either of the grounds therein stated, if true, entitled the defendant to a change of venue. Upon this subject, under the law as amended by

article 583, Code of Criminal Procedure, there must be an issue formed between the State and the defendant. This is effected by the affidavit of a credible person, attacking either the credibility or means of knowledge of the applicant’s compurgators. In this case we have the affidavits of nine persons, but neither the credibility or means of knowledge of defendant’s supporting affiants is attacked.

It is true the controverting affidavit states that the affiants believe that the means of knowledge of Perry, Ellis and Day is too limited to warrant them in swearing that there is a combination of influential persons in Gonzales county against defendant, such as would prevent him from obtaining a fair and impartial trial.

In this the means of knowledge of the compurgators, with reference to the existence of a combination against defendant, is attacked, but no question as to their means of knowledge relating to the existence of prejudice in the county is made or intended to be made in or by the controverting affidavit. Appellant was entitled to a change of venue upon either ground, if true, and his compurgators may have been thoroughly informed regarding the existence of the prejudice in the county, without being sufficiently informed of the combination against defendant.

There is, therefore, no issue between the state and the defendant upon the existence of such prejudice in the county as will prevent defendant from obtaining a fair and impartial trial. This being the case, he was entitled to a change of venue. (See the subject discussed in Davis v. The State, ante, p. 201.) Notwithstanding there was no issue formed between the parties upon one of the grounds for change of venue relied on by defendant in his application, still he proposed to prove affirmatively: 1st. That there "was such combination against him; and 2d.

That in fact there was such prejudice in the county against him that he could not obtain a fair and impartial trial. How, without an issue between the parties as to the existence of prejudice in the county, defendant was not required to prove anything, having the right to the change upon an unquestioned ground. But let us suppose that an issue had been formed between the parties upon both grounds relied upon by defendant, would, in such a case, defendant have the right to make such proof as that offered by him as above? We think so. (See Davis v.

The State, supra.) In this case, however, the court denied him the right, rejected the offered proof, and overruled his application for change of venue. . This was error for which the judgment must be remanded. It appears from the record that one John Hester had been convicted of the theft of sheep of greater value than $20. That he, upon said conviction, had been sentenced to five years’ confinement in the penitentiary at hard labor.

When offered as a witness, the record of his conviction and sentence being produced in evidence by defendant, counsel for defendant objected to his testifying, because of said conviction, etc. Whereupon the State produced in evidence a pardon containing the following provisions: “ Subject to revocation by the Governor of Texas whenever it shall be determined by said Governor that he has violated any of the criminal laws of this State,” and again proposed the convict as a witness.

The defendant objected upon the ground that this was a conditional pardon, and that such pardon did not restore him to his competency as a witness. The court overruled the objection, and Hester was sworn as a witness for the State; to which the defendant objected, and reserved his bill of exceptions. “An absolute pardon is one which frees the prisoner without any condition whatever. A conditional pardon is one to which a condition is annexed, performance of which is necessary to the validity of the pardon. (1 Bail., 283; 10 Ark., 284; 1 McCord, 176; 1 Park. Cr.

Cases, 17.) If the pardon be conditional, the condition may be either precedent or subsequent; if precedent,— that is, if by its terms some event is to transpire before it takes effect,— its operation is deferred until the event occurs. But if the condition is subsequent, the pardon goes into operation immediately, yet becomes void whenever the condition is broken.” (1 Bish. Cr.

Law, 911.) The effect of a full or absolute pardon is to absolve the party from all the legal consequences of his crime, and of his conviction, direct and collateral; including the punishment, -whether of imprisonment, pecuniary penalty, or whatever else the law has provided. Among the collateral consequences of conviction for felony is the incapacity to be a witness; this is restored by a full pardon. Mr. Bishop says, however: “yet only a full pardon has this effect,” cit- “ ing in support of this proposition Perkins v. Stevens, 24 Pick., 277.

Upon an examination of that case it will be found that there was not annexed to the pardon either a precedent or subsequent condition. In that case the Governor remitted to McKenzie the residue of the punishment he was, sentenced to endure in the State prison; this was the extent of the pardon. There was no intention on the part of the Governor to pardon the offense. Unquestionably if there be a condition precedent annexed to a pardon, the operation of the pardon is deferred until the condition is performed or the event has occurred.

If, however, the condition is subsequent, the pardon with all of its'consequences goes into operation immediately, becoming void whenever the condition is broken. (1 Bish. Or. Law, § 914.) The effect, therefore, of a pardon with a subsequent condition is the same as a full unconditional pardon until the condition is broken. I am of the opinion that Hester was a competent witness, and that there was no error in overruling appellant’s objections to him upon the ground of incompetency.

The indictment charges that defendant did break and enter the house, but there is no allegation as to night or day,— that is, it is not alleged that the entry was at night, nor is it alleged that it was in the day-time. First question: Is the indictment sufficient? Burglary is constituted by entering a house by force, threats or fraud at night, with intent to commit felony or theft; also by entering a house in the day-time, by breaking, with same intent. The entry, to constitute burglary, if at night, must be by force;—threats or fraud not being in this case. If in the day-time, the entry must be by breaking.

But suppose the entry was in fact in the day-time, the indictment is sufficient without alleging “in the day-time,” because it alleges that the entry was by breaking, and, whether at night or in the daytime, such entry is burglarious. How let us suppose that the entry Avas at night. The indictment Avould be good because, whether at night or in the day-time, such entry would be burglary. (Sullivan v. The State, 13 Texas Ct. App., 462.) By a close inspection of articles 705 and 708, Penal Code, it will be seen that by

article 705, to constitute burglary, there must be a breaking; this is constituted by an entry with actual force (article 707); and this actual force or breaking must be exerted upon the building or house to obtain an entrance therein,— that is, the force mentioned in

article 708, and which is declared a breaking, must be applied to the house in order to effect an entrance. Hence, burglary cannot be constituted in the day-time by an entrance obtained by threats or fraud, but the entrance must be by force used upon the building. But, on the other hand, if at night, burglary is constituted by entering a house by breaking, or, which is the same thing, force used upon the house to effect an entrance, or by “ force which is not applied to the house,” or by threats or fraud. There may be force which is not applied to the house.

To illustrate: Suppose the owner or occupant of the house is in or near the door, which is wide open. The burglars seize him and remove him from the door, and place him out of their way, enter and rifle the house. How in this supposed case there is no breaking or force used upon the house, vet this would be burglary. Therefore we conclude that, if at night, force of any character, whether applied to the building or not, if resorted to in order to effect an entry, comes within the meaning of the term “force” as used in

article 704, but not within the meaning of the same word as used in

article 708. If, therefore, upon the trial it should be developed that force was used, but not upon the house, the indictment failing to allege that the entry was at night, without such allegation a conviction could not legally be had. For when such force is resorted to, to effect an entrance, to constitute burglarious entry it must be at night,— and the same rule obtains with reference to threats or fraud.

But if, upon the trial, the evidence should show that the entry into the house was effected by force applied to the house, which would be a breaking, the indictment alleging an entrance by force and breaking, there is no necessity to allege that it was at night; because, if such force is used, whether at night or in the day-time, accompanied by the intent to commit felony or theft, this would be a burglarious entry. We conclude that, as the evidence in this case establishes an entrance by breaking, the conviction was legal, such evidence b;ing supported by the allegation.

We have examined the argument of counsel for appellant upon the insufficiency of the evidence to sustain this conviction, in connection with the statement of facts, and must say that, in our opinion, the verdict is supported by the evidence. This court cannot pass upon the credibility of the witnesses, this being the province of the jury. Hester, the accomplice, was amply corroborated by other witnesses besides Darnell. The judgment, however, must be reversed because of the action of the learned judge below with reference to the application to change the venue. The judgment is reversed and the case remanded.

White, Presiding Judge. With regard to the effect and character of the pardon granted by the Governor to the witness Hester, I cannot concur in the views expressed in Judge Hurt’s opinion. The conditions annexed to the pardon were that it should be “subject to revocation by the Governor of Texas whenever it shall be determined by the said Governor that he has violated any of the criminal laws of the State.” Ho one will deny that the power to grant pardons conferred by the Constitution (Const., art. IV, § 11) carries with it the power to make the pardon full, partial or conditional.

Such has always been the law, as we understand it, both in England and America. (1 Bish. Grim. L., § 914.) Another rule which, we think, may be considered sound in reason and law, is that “ the Governor may annex to a pardon any condition, whether precedent or subsequent, not forbidden by law, and it is binding upon the grantee.” (Flavell's Case, 8 Watts & Serg. (Pa.), 197; Hunt, Ex parte, 10 Ark., 284; Ex parte Wells, 18 Howard (U. S.), 307.) A full pardon absolves the party from all the legal consequences of his crime, and amongst the disabilities removed is his incapacity-to be a witness.

Only a full pardon has this effect. (1 Bish. Grim. L., § 917.) The effect of a full pardon “ is to make the offender a new man; to acquit him of all corporal penalties and forfeitures annexed to the offense for xvhich he obtains his pardon, and not so much to restore his former as to give him a new credit and capacity.” (Hunnicutt v. The State, 18 Texas Ct. App., 499, citing 4 Black. Com., 402; 1 Greenl. Ev., § 377; People v. Pease, 3 Johns. Cases, 333; Wood v. Fitzgerald, 3 Oreg., 568; In re Deming, 10 Johns. Cases. 232; State v. Baptiste, 26 La. Ann., 136; Ex parte Hunt, 5 Eng. (Ark.), 284; Hester v.

Comm., 85 Pa. St., 154; 2 Hawk. P. C., 547, and cases there cited; 1 Phill. Ev., 21; 1 Gilb. Ev., 259.) A full pardon is a remission of guilt; it releases the offense and ■ obliterates it in legal contemplation. (1 Bish. Cr. L., § 898; Osborn v. United States, 91 U.

S., 474.) Haxvkins says: “I take it to be settled at this day that the pardon of a treason or felony, even after a conviction or attainder, does so far clear the party from the infamy of all other consequences of his crime that he may not only have an action for scandal in calling him traitor or felon after the time of the pardon, but may also be a good xvitness notwithstanding the attainder or conviction; because the pardon makes him., as it were, a new man and blots out his offense.” (2 Hawk. P. C., p. 547, § 48; Hunnicutt v. The State, 18 Texas Ct. App., 499; Knote v.

United States, 5 Otto, 153; 2 Abb., 149.) A full pardon blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. (Ex parte Garland, 4 Wall. (U. S.), 333.) From these authorities it becomes evident that before a convict’s competency as a witness is restored he must have been absolved from all the consequences of his crime and its punishment.

There must have been a remission of his guilt; he must, as it were, have been made a new man with new capacity and credit, whose offense has been blotted out. “Lord Coke says a pardon is a work of mercy whereby the king forgives crimes. It is frequently conditional, as he may extend his mercy upon what terms he pleases, and annex to his bounty a condition precedent or subsequent, on the performance of which the validity of the pardon will depend.

If the felon does not perform the condition of the pardon, it will be altogether void and he'rnay be brought to the bar and remanded to suffer the punishment to which he was originally sentenced.” (Church on Hab. Corp., § 458.) Mr. Bishop says, “a conditional pardon may be on condition either precedent or subsequent; if precedent,— that is, if by its terms some event is to transpire before it takes effect,— its operation is deferred until the event occurs. If the condition is subsequent, the pardon goes into effect immediately, yet becomes void -whenever the condition is broken.” (1 Bish. Cr.

L., §914.) We do not dispute this latter proposition, but we think Judge Hurt misconstrues the extent to which a pardon upon subsequent condition is allowed to go into effect immediately. Mr. Bishop, in support of his text, cites two cases, only one of which has been accessible to us.

In that case (Flavell's Case, 8 Watts & Serg. (Pa.), 197), the convict had been pardoned “on express condition that he be taken direct from the penitentiary on board the vessel which is to convey him out of the country,- and there remain until the vessel put to sea.” On habeas corpus the court discharged the prisoner under the pardon, holding that where a condition is annexed to a pardon “it lies upon the grantee to perform the condition.

If he does not, in case of a condition precedent the pardon does not take effect; in case of a condition subsequent, such as this before us (if the condition is not performed), the pardon becomes null; and if the condition is not performed, the original sentence remains in full vigor and may be c írried into effect.” The case does not bear out the construction placed upon the text. If the doctrine announced by Judge Hurt be correct, then there is absolutely no difference whatever between a full pardon and one upon a subsequent condition.

If it goes into effect immediately so as to restore him to all his rights, the convict has all he could reasonably desire, and may well refuse to pay any regard to the subsequent condition, because it would not concern him material^. It is, however, not the time when a pardon commences to operate which determines its character and effect. Its character is ascertained by the terms in which it is expressed and the conditions annexed to it. To illustrate: In the case of Ex parte Wells, 18 How. (U.

S.), 307, Wells was convicted for murder and sentenced to death; the President of the United States granted him a conditional pardon, the condition being “ that he should be imprisoned during his natural life.” It was held by the supreme court that the pardon and subsequent conditions were valid. How, then, here we have a party pardoned with subsequent conditions attached to the pardon; the pardon went into effect immediately. Will any one contend that because such pardon took effect immediately it thereby rehabilitated Wells and restored all his rights of citizenship?

The supreme court expressly decided that it did not restore his liberty; and we feel confident that no court would hold that it restored his competency as a witness so long as he was suffering imprisonment as a convicted felon for the crime he originally committed. A mere remission or commutation of punishment cannot restore a felon’s competency as a witness. (Perkins v. Stephens, 21 Pick., 277.) “It is only a full pardon of the offense which can wipe away the infamy of the conviction and restore the convict to his civil rights. . ., .

There is but one mode now in use of restoring the competency of a witness, and that is by pardon under the great seal of the State, which, when fully exercised, is an effectual mode of restoring the competency of a witness. It must be fully exercised to produce this effect; for, if the punishment only be pardoned or remitted, it will not restore the competency and does not remove the blemish of character.

There must be a free and full pardon of the offense before these can be restored and removed. (Id.) Is the pardon before us in this case a full pardon, or one which restores Hester to all his rights of citizenship? Let us apply the tests. Is his crime blotted out? Is his guilt remitted? Is he made a new man? Is he given new credit and capacity to the extent that he is the equal before the law of all his fellow-citizens in all his and their civil and criminal rights? (Knote v. United States, 5 Otto, 153.) If the conditions are valid, not one of these questions can be affirmatively answered.

His crime is not blotted out, because he can still be punished for it “ whenever it shall be determined by the Governor that he has violated any of the criminal laws of the State.” His guilt is not remitted, because the Governor still holds him subject to punishment for it if he determines that he has violated any of the criminal laws of the State. He is not made a new man, because liability to the same old punishment still attaches to him. He is not the equal before the law of the rest of his fellow-citizens. Why? Let us see.

Suppose Hester and anyone or more of his fellow-citizens should combine and unite together in committing a simple assault. His fellow-citizens, co-principals and co-conspirators, could only be punished by a fine of not more than $25. Hester, not more guilty than they, is not alone fined $25, but he is also seized by order of the Governor and incarcerated in the penitentiary, because by committing said assault he has violated a criminal law of the State.

Under the conditions of this pardon the taint of his original crime clings to him like the shirt of Eessus as long as life lasts, and its punishment, like the sword of Damocles, is kept continually suspended over him. Such a pardon cannot restore a convict’s competency as a witness. He is simply a ticket-of-leave-man,— with unrestrained liberty so long as he behaves himself, or so long as the Governor may not determine that he has committed some misdemeanor.

I am of opinion the witness Hester was wholly incompetent to testify, because he is a convicted felon whose disabilities have not been removed; and that the court erred in permitting him to testify, over objection of defendant. I concur in the other grounds stated in the opinion of Judge Hurt for a reversal of the judgment. Willsoh, Judge. “A pardon isa remission of guilt.” (1 Bish. Or. Law, § 898.) It is full, partial, or conditional.

Full, when it freely and unconditionally absolves the party from all the legal consequences of his crime and of his conviction, direct and collateral; including the punishment, whether of imprisonment,' pecuniary penalty, or whatever else the law has provided. (1 Bish. Or. Law, § 916.) Partial, where it remits only a portion of the punishment, or absolves from only a portion of the legal consequences of the crime. Conditional, where it does not become operative until the grantee has performed some specified act, or where it becomes void when 'some specified event transpires. (1 Bish. Or.

Law, § 914.) In the case under consideration the pardon is clearly of this latter class. Its validity is made dependent upon the condition subsequent, that the grantee shall not violate any of the criminal laws of this State. This condition is neither impossible, criminal nor illegal, bnt is within the limit of approved conditions, and therefore valid. It must, therefore, go with and form a part of the grant of pardon, and hence the pardon is not a full but a conditional pardon. Such being its character, it cannot have the effect to restore the competency of the witness Hester.

It is only a full pardon that could have this effect. (1 Bish. Cr. Law, § 917; Whart. Cr. Ev., § 365.) I therefore concur in the opinion of Presiding Judge White, that the witness Hester was incompetent to testify, and that because he was permitted to testify the judgment should be reversed and the cause remanded. , Reversed and remanded. [Opinions delivered December 16, 1885.]