SUPREME COURT RECORDS PAGE 17

 

File contributed by Lisa Lach and proofed/formated by Dena Stripling

*1 While the application for continuance stated that the defendant could prove by three

women that he won the coat which he is charged with stealing from another freedman on

the day, etc. (see statement), the showing is not a compliance with the code. Pas. Dig.

art. 2987. On the first application, if the statute be complied with, a continuance

is granted, of course.

When not in accordance with the statute, it is addressed to the sound discretion of

the court.

Where the property was stolen, and the party was found in possession of it three hours

afterwards, he is, prima facie, guilty, and unless there be proof to rebut this presumption,

the verdict will not be disturbed.

APPEAL from Bastrop. The case was tried before Hon. JOHN IRELAND, one of the district

judges.

The defendant was indicted for stealing a coat. He moved for a continuance, and on the

ground that he was almost a total stranger in that community; that he had beea in the

county but a few days before he was arrested in this case; that he had been confined

in the county jail ever since he was accused of the charge; that he could prove by

three women of color that he won the coat which he is charged with stealing from

another freedman, on the day and about one hour before he was arrested, etc.; that,

being a stranger, and having no friends or relatives in the county, he had not been

able to learn the names of the three freedmen; that he could prove that he came

honestly by the coat; expected to procure the attendance of such witnesses, etc.

The motion was overruled, but the point does hot seem to have been saved by bill

of exceptions. It was proved that the coat stolen was worth $30; that the accused

was fo!lowed, and the coat found upon his person; that he said he had won the coat

behind the livery stable with cards; but that he had ruade contradictory statements

as fo where he said he had won it.

The charge of the court was in accordance with the statute. The defendant was found

guilty, and his punishment assessed at two years in the penitentiary. He moved for a

new trial, which was overruled, and he appealed.

 

 

 

It is error to refuse an application for a first continuance on defendant's compliance

with the statutory requirements therefor.

 

 

The granting of a continuance on the ground of the absence of witnesses, when the

application is based upon causes not contemplated in the statute, rests in the

discretion of the court in view of all the facts.

 

 

An application for a continuance on the ground of the absence of witnesses, by a

defendant charged with the larceny of a coat, stating that "he can prove by three

women that he won the coat from another freedman, on the day, and about an hour

before, he was arrested; that, being a stranger, and having no friends or relatives

in the county, he had not been able to learn the names of the three women, but

expected to procure the attendance of such witnesses,"-does not comply with Pasch.

Dig. art. 2987, requiring a first application for continuance on such ground to

state the name of the witness and his residence, if known, or that his residence

is unknown; the diligence which has been used to procure his attendance; the facts

which are expected to be proved; that the witness is not absent by the procurement

of the defendant; and that the application is not made for delay.

 

 

If the court is satisfied of the relevancy of the evidence of absent witnesses set

up for a continuance, it should, on motion, grant a new trial.

A. D. McGinnis, for the appellant, insisted that the motion for continuance was

improperly overruled, and that the defendant was wrongfully convicted.

William Alexander, Attorney General, for the state.

 

 

CALDWELL, J.

*2 We see no error in the record. The indictment is unobjectionable, and charges

the offense in the language of the statute. The application for a continuance

states, that "he (defendant) can prove by three women that he won the coat he is

charged with stealing from another freedman, on the day and about an hour before

he was arrested;" and that the names and residence of witnesses are unknown.

This does not comply with the statute (Pas. Dig. art. 2987), and is addressed to

the discretion of the court. An application for a first continuance, in the terres

of the law, relieves thc court of its discretion, and the continuance is granted

as of course. Not so when the application is based upon causes not contempiated in

the statute. Then the discretion of the court is invoked in view of ail the facts.

After trial and conviction, with a full knowledge of all the evidence, the court is

better prepared to judge of the relevancy of the cause set up for a continuance,

and, if satisfied that injustice has been done, upon motion, a new trial ought to

be awarded. Cooper v. The State, 19 Tex. 459.

The evidence fully sustained the verdict. The defendant was found in possession of

the property within three hours after it was stolen. This is prima facie evidence

of guilt; and, unless there is some proof to rebut this presumption, the jury were

warranted in so finding.

There being no error, the judgment of the court below is

Affirmed.

Tex. 1867.

GEORGE JENKINS v. THE STATE.

30 Tex. 444, 1867 WL 4628 (Tex.)

END OF DOCUMENT

 

 

==============

 

*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. Pas. Dig. art. 3707.

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. Art. 3707.

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.

Tex. 1869.

THE STATE v. GEORGE ALLEN AND OTHERS.

32 Tex. 273, 1869 WL 4814 (Tex.)

END OF DOCUMENT

 

 

==

 

*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 Walter 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. (Article 2266, Criminal Code, Paschal's Digest.) 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 (Beauchamp

v. State, 6 Blackf., 300), 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. (2 Hale,

185; Archbold's Criminal Pleadings, 384, 405.) 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."

(Calvin v. State, 25 Texas Rep., 793.)

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" (Drummond v. Republic, 2 Texas Rep., 157); 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.

Tex. 1871.

GEORGE THOMPSON v. THE STATE.

36 Tex. 326, 1872 WL 7549 (Tex.)

END OF DOCUMENT

 

 

 

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*1 1. Appeal does not lie from the action of a district court in overruling a motion

for new trial in a criminal case.

2. In this case the jury found the defendant guilty of rape; thereupon the court

remanded the defendant to jail to await sentence. A motion for new trial was

overruled, and an appeal taken. Held, that the supreme court had no jurisdiction

on appeal.

3. Hoppe v. The State, in 32 Tex., overruled.

APPEAL from Bastrop. Tried below before the Hon. J. P. Richardson.

The defendant was found guilty of rape. Upon the return of the verdict, it was

ordered by the court that the defendant, Albert Fulcher, be remanded to the county

jail, there to await judgment and sentence.

A motion for new trial was overruled, the record showing, "It is ordered by the

court that said motion be and the same is hereby overruled, to which ruling of

the court the defendant did then and there except, and gave notice in open court

of appeal to the supreme court of Texas."

 

 

 

Appeal does not lie from a decision of the district court overruling a motion for

new trial, in a criminal case for want of any final judgment. Thus, where defendant,

found guilty of rape, was remanded to await sentence, and moved for a new trial,

which was denied, and he appealed, held, that the appeal was premature.

Jones & Sayers, for appellant.

Attorney General, for the state.

 

 

MCADOO, J.

No judgment was rendered on the verdict of the jury in the court below, in this case,

as disclosed by the record. The appeal was taken, and is prosecuted alone from the

action of the district court in overruling the motion for a new trial.

The court uniformly held, in a long line of decisions, from case of Shultz v. The State,

13 Tex. 401, to Lane v. Ellinger, 32 Tex. 369, inclusive, that without final judgment,

there could be no appeal to this court. The same rule has been held, both in civil and

criminal causes; and, indeed, the rule must be the same in both classes of cases, as

the reason of the rule is the same in both. The jurisdiction of this court is appellate

only, and is only conferred by positive law; there is no provision of the law which,

in any case, gives the right of appeal, except from judgments rendered against the parties

appealing.

The rule above laid down, and which was so long and so consistently maintained by this

court, was disregarded and overruled in Hoppe v. The State, 32 Tex. 389.

In the opinion in that case, Mr. Justice Lindsay says: "We think the import of article

3151 is too clear and palpable to the understanding to be called in question, that the

convict may appeal from such a judgment to this court." The judgment here referred to

is the judgment of the district court overruling the motion for a new trial. In that

case, as in this, there was no judgment rendered on the verdict of conviction--no

judgment except that overruling the motion for a new trial.

*2 This section (3151, Pas. Dig.) certainly confers no jurisdiction on this court, and

it was not intended by the legislative mind to confer any. It only recognized an exercise

of such jurisdiction as is conferred by law; and this section must be construed in

connection and in harmony with the law conferring jurisdiction.

We think the opinion in Hoppe v. The State is based on a misconception of the true import

of the language used in article 3151; and especially does this so appear when construed

in connection with article 3183. The latter article reads as follows: "An appeal may be

taken by the defendant in every case where judgment of conviction has been rendered

against him in the district court," etc.

This is the law, and all of the law, which gives the right of appeal in this class of

cases. By its very terms the appeal only lies from the judgment of conviction

"rendered;" not from the judgment overruling the motion for a new trial; nor from

the verdict of the jury; nor from any part of the proceedings in the case. The very

language of article 3183 is its own best interpretation. What language can be

clearer or more conclusive?

Now, in view of the language used in article 3183, what is the true intent of article

3151? This latter article reads as follows: "When, from any cause whatever, a verdict

of conviction has been returned, and there is a failure to enter judgment and pronounce

sentence during the term, the judgment may be entered and sentence pronounced at the next

succeeding term of the court, unless a new trial has been granted, or the judgment

arrested, or an appeal has been taken."

A proper analysis of the above language clearly develops this meaning: When, for any

cause whatever, after a verdict of conviction has been returned, there is a failure

to enter judgment, the judgment may be entered at the next succeeding term of the court,

unless a new trial has been granted, or the judgment has been arrested; and if there

is a failure to pronounce sentence during the term, the sentence may be pronounced at

the next succeeding term of the court, unless an appeal has been taken.

Had the two failures in the district court, intended to be cured by that section, been

provided for, not in a single section and a single sentence, but in two distinct

sections, as is usual in the provisions of the code of procedure, the erroneous

construction placed by the court on article 3151, in Hoppe v. The State, would have

been avoided.

For the reasons set out in this opinion we are satisfied that this court should recede

from the ruling in Hoppe v. The State, and return to the former rulings on the subject

of appeals from the district court to this court.

Dismissed.

 

 

OGDEN, P. J.

*3 I concur in the above opinion. The case is therefore dismissed for want of final

judgment.

The cases of Smith and Fulcher v. The State, Nos. 1688 and 1689, will be dismissed,

for the reasons set forth in this opinion.

 

WALKER, J., dissenting.

It is not my purpose in writing a dissenting opinion to weaken or unsettle by criticism

the opinion of the majority of the court rendered in this case. The majority of the

court have boldly overruled the case of Hoppe v. The State, following, as we are told,

the previous rulings of the court. I am unable to find that the precise point raised

in this case has ever been adjudicated in any criminal case decided before Hoppe v. The

State. In Shultz v. The State, 13 Tex. 401; Burrell v. The State, 16 Tex. 147; in Calvin

v. The State, 23 Tex. 577, and in perhaps one or two earlier cases, in none of which

does it appear that an appeal had been taken from a judgment overruling a motion for a

new trial or a motion in arrest of judgment, the courts have held that an appeal would

not lie to the supreme court on a verdict of conviction where no final judgment had

been entered. I believe I have thus fairly stated the doctrine of the earlier cases.

I will restate it; it is this: An appeal will not lie from a verdict of conviction

where no final judgment has been entered. I will place this doctrine in juxtaposition

with the statute-- art. 3151, Pas. Dig. The article reads thus: "Where, from any cause

whatever, a verdict of conviction has been returned and there is a failure to enter

judgment and pronounce sentence during the term, the judgment may be entered and

sentence pronounced at the next succeeding term of the court, unless a new trial

has been granted, or the judgment arrested, or an appeal has been taken."

It is announced in the opinion of the majority of the court that this statute confers

no jurisdiction upon the supreme court. Certainly not. I do not for one moment claim

that it does; but the constitution confers an appellate jurisdiction upon this court,

and warrants the allowance of an appeal whenever, in the opinion of any member of the

court, any error in law has been committed in the district court. Suppose, then, a

failure to enter a final judgment on the verdict of conviction is the very error

complained of. Will it be contended for one moment that a judge of this court has

no power under the present constitution to grant the appeal?

I assert it as my unqualified belief that it would be the duty of any member of

this court, regarding the final judgment, so-called, as a sine qua non, to grant

the appeal for this reason alone, and it would be the duty of the court to correct

the error. But what is the force of article 3151? It provides that a final judgment

may be entered at a succeeding term of the court where it has been omitted at the

trial term, if a new trial has not been granted, the judgment arrested, or an appeal

taken. And suppose an appeal has been taken, then what does the legislature say? If

it is not said that nothing more shall be done in the district court until the

appeal has been determined, then the necessary action of the district court may be

had; but we may well ask ourselves what is properly to be regarded as a final

judgment in any case, and the question is fully answered in Kennedy v. Morrison, 31 Tex.

220. In delivering the opinion of the court the chief justice says: "In appealing from

the final or last judgment that was rendered in the cause, whether that judgment should

be the adjudication of the court, that the defendant go hence, etc., or that the

plaintiff have and recover, etc., or that a new trial be granted or refused to a

party applying for the same--in either of these cases the last judgment appealed

from brings up for the revision of this court all the previous proceedings or

interlocutory judgments."

*4 It might be insisted with much plausibility that a motion for a new trial, or

a motion in arrest, would be irregular and certainly unnecessary if no final

judgment had been entered on the verdict.

But this court would not allow an appeal, unless one or the other of these motions

had been made in the district court and overruled. Suppose, then, neither of

these motions be made in the district court where no final judgment has been

entered, and the court goes on and sentences the prisoner to the punishment to

which the jury has condemned him. This sentence will stand as a final judgment,

and in my opinion the prisoner can take no exception to it; and here, I think,

arises much of the difficulty attaching to this question. What is insisted on as

a final judgment should, under our law, be no more nor less than the sentence of

the court condemning the prisoner to suffer the penalty awarded by the verdict.

Our criminal law is peculiar. Under our system the court does not adjudge the

punishment. The jury fixes that. The judgment of the court can add nothing to it,

and diminishes nothing from it. All the court can do with it is to set it aside

and grant a new trial, or arrest it for some legal insufficiency of the record.

 

Is it necessary, then, in order to give force to the verdict, that the judge should

say, "I approve the verdict of the jury," or use some such unnecessary form of words,

as will indicate that the judge does what he cannot help doing?

Form, and form only, has prescribed that the judge, before the prisoner is taken to

the cell or the scaffold, shall address the prisoner, notifying him of his punishment,

and the time and manner of its execution, concluding with a benediction; but this is

the last ceremonial of the court; and if it be a judgment, it is the final judgment,

and no appeal can be taken from it; nor can it be pronounced, where an appeal has been

taken, until that appeal has been determined against the prisoner.

It was the opinion of the late presiding justice of this court, and is certainly

entitled to consideration, that the 3d section of the 5th article of the constitution

does away with all necessary controversy on this subject. The section reads thus:

"In criminal cases, no appeal shall be allowed to the supreme court, unless some judge

thereof shall, upon inspecting a transcript of the record, believe that some error

of law has been committed by the judge before whom the cause was tried."

I again recur to this, and maintain that, if it be error in law to omit the so-called

final judgment, the appeal should be allowed and the error corrected. But in attaching

the importance I do in this consideration to the foregoing clause of the constitution,

I by no means surrender the doctrine of Hoppe v. The State, 32 Tex. 389.

Here the question was fairly met, that a party convicted may appeal from a judgment

overruling his motion for a new trial, though no judgment has been entered upon the

verdict of conviction.

*5 It cannot be said that until judgment is entered on the verdict the prisoner has

no ground for a motion for a new trial, and nothing to appeal from. Such is not the

fact nor the law. The verdict of the jury fixing the measure of his punishment is

against him, and if he resist it by no motion, nor appeal, and sentence follow, his

doom is sealed. But to relieve the learned court that decided Hoppe v. The State

from any charge of inconsistency by reason of a supposed clash between Hoppe v. The

State and Lane v. Ellinger, I must examine the latter case; and though Lane v.

Ellinger is quoted as authority in the opinion of the majority of the court, I

think the most cursory examination of the case will show that it has nothing to

do whatever with the principle involved in the case at bar, and in Hoppe v. The

State. All that was decided in Lane v. Ellinger is simply that no writ of error

will lie to a refusal by a district judge to enter a final judgment in a cause.

I humbly submit that this case, thus fairly stated, gives no support whatever to

the opinion of the majority of the court. It was no doubt properly considered

by the court in Lane v. Ellinger that mandamus was the proper remedy. I submit

my opinion with all deference to the decision of a majority of the court.

Tex. 1873.

ALBERT FULCHER v. THE STATE of TEXAS.

38 Tex. 505, 1873 WL 7444 (Tex.)

END OF DOCUMENT

 

 

 

Tex. 1874.

IRA J. COX v. THE STATE.

41 Tex. 1, 1874 WL 7970 (Tex.)

 

 

When the location of a county boundary is a material fact to be determined,

evidence of general reputation is admissible in criminal as in civil cases.

 

The failure of the court to give an instruction on the trial of a criminal

cause, fully embracing all the facts necessary to constitute the offense,

will not be cause for reversal, if it clearly appears from the evidence that

such instruction could not have resulted in protecting any right of the

accused.

 

*1 APPEAL from Travis. Tried below before the Hon. J. P. RICHARDSON.

COX was indicted for theft from a house situate in BASTROP county, within

four hundred yards from the county line of Travis county. The article in the

Code of Criminal Procedure permitting the venue to be laid in Travis when

the offense was committed in BASTROP is as follows: "An offense committed on

the boundary line of any two counties, or within four hundred yards thereof,

may be prosecuted and punished in either county, and the indictment or

information may allege the offense to have been committed in the county

where it is prosecuted."

The court gave in charge the statutory definition of theft, and did not

instruct the jury that the taking of personal property from the possession

of one holding it for another must, to constitute theft, be a taking without

the consent of the person so holding it; but no instruction was asked on

that point, nor were exceptions taken to the charge as given. The evidence

was, however, conclusive that the taking was without the consent either of

the owner or his agent having charge of the property.

The evidence was circumstantial, and is detailed in the opinion. Verdict of

guilty, from which COX appealed.

EVANS & CUNNINGHAM, for appellant, contended--

1. That the court did not give in charge all the law applicable to the case,

and that the judgment should be reversed, citing Pas. Dig. arts. 3059, 3060;

BROWN v. The State.

2. That parol evidence should not have been admitted to establish by common

reputation the location of the county line between Travis and BASTROP

counties; that the English doctrine allowing it grew out of the fact that,

as their county boundaries were not established by act of Parliament, there

could be no other evidence than that of general reputation; but in the

American States county boundaries were fixed by law, which, being the best

evidence, should have been resorted to.

3. That the State could not allege the offense to have been committed in

Travis, and prove it in BASTROP county.

4. That this court should take cognizance of errors apparent upon the face

of the record, though not assigned, when the same go to the foundation of

the action, and especially where the life or liberty of the citizen is

involved.

George CLARK, Attorney General, for the State.

 

DEVINE, ASSOCIATE JUSTICE.

*2 The defendant was indicted in the county of Travis; indictment charging

that, on the 7th day of February, 1874, the accused, in said county and

State, did then and there, in the county of BASTROP, within four hundred

yards from the county line of Travis county, unlawfully and fraudulently

take from the possession of R. T. HILL, "and out of the dwelling-house

occupied by said HILL," certain moneys belonging to "W. H. CALDWELL, without

the consent of the said HILL, the person having possession of said money,

and with the intent," & c., &c.

The jury found the accused guilty, as charged, and assessed his punishment

at five years' imprisonment in the penitentiary.

The defendant's motion for a new trial was overruled, notice of appeal

given, and the case is presented for revision on the following assignments

of error: "That the court erred in not instructing the jury that the taking

of personal property from the possession of one holding it for another must

be a taking without the consent of the person so holding it." The charge of

the court in this respect might have been fuller. The omission in this case

is, however, not material; it was not absolutely necessary for the

protection of any right which the accused might have. The evidence of W. H.

CALDWELL, the owner of the money charged to have been stolen, and of R. T.

HILL, in whose possession it was at the time of the theft, is positive on

this point; both witnesses state they did not give their consent, and the

defendant made no proof contradictory of this evidence.

The second assignment, "that the court erred in instructing the jury that

general reputation of the location of the county line is evidence of such

location," suggests no real error.

Mr. GREENLEAF, in his treatise on Evidence, vol. 1, p. 152, states the rule

as follows: "In matters of public interest all persons must be presumed

conversant, on the principle that individuals are presumed to be conversant

in their own affairs; and as common rights are naturally talked of in the

community, what is thus dropped in conversation may be presumed to be true.

It is the prevailing current of assertion that is resorted to as evidence,

for it is to this that every member of the community is supposed to be privy

and to contribute his share. Evidence of common reputation is, therefore,

received in regard to public facts, * * * on ground somewhat similar to that

on which public documents not judicial are admitted, namely, the interest

which all have in their truth, and the consequent probability that they are

true."

Appellants in their brief contend that the English rule as to common report,

or traditionary evidence in proving boundaries, and, as in this case, the

boundary line between the counties of BASTROP and Travis, "being handed down

by tradition from generation to generation," was allowed "in accordance with

the well-known principle of the law of evidence, that it was the best

evidence the nature of the case admitted of;" but that "this doctrine is not

applicable to this country, especially to the newest of the American

States." In NOYES v. WARD, 19 Conn. Rep., p. 268, in an action of trespass

vi et armis, where defendant assaulted "the city highway surveyor," for

interference with the land of defendant, the court held that such evidence,

to show a moving in of defendant's fences twenty-one years before, was

proper, and say, "Proof of general reputation was admissible in this case

for the purpose of showing the existence and extent of the highway in

question."

*3 In BOARDMAN et al. v. The Lessees of REED and FORD, 6 Peters, 328,

Justice MCLANE, in delivering the opinion, says: "That boundaries may be

proved by hearsay testimony is a rule well settled, and the necessity or

propriety of which is not even questioned." "Landmarks are frequently found

of perishable materials, which pass away with the generation in which they

are made; by the improvement of the country, and from other causes, they are

often destroyed. It is therefore important in many cases that hearsay or

reputation should be received to establish ancient boundaries."

In RALSTON v. MILLER, 3 Rand., (Va. Rep.,) p. 44, the question grew out of

the location of a building on the corner of a street in the city of

Richmond, and the controversy was whether ancient use, and general

reputation of that use or occupation, should on the trial outweigh the

depositions and survey of a surveyor as to the true line. The court said

"that ancient reputation and possession were entitled to infinitely more

respect in deciding on the boundaries of the lots than any experimental

surveys." In the American notes to 1 PHILLIPS & ARNOLD on Evidence, from

page 220 to 227, the citations from decisions of the courts of New

Hampshire, Massachusetts, Connecticut, New York, Pennsylvania, Maryland,

Virginia, North and South Carolina, Tennessee, and other States show that

evidence of hearsay or general reputation to prove boundary lines has been

extended quite as far in those States as in the English courts.

Mr. GREENLEAF, in his work on Evidence, in a foot-note, pages 167 and 168,

says: "The admission of traditionary evidence in cases of boundary occurs

more frequently in the United States than in England," and that "the general

practice in this country in the admission of traditionary evidence as to

boundaries seems to agree with the common law, as stated in the text."

The boundary lines of Travis and BASTROP were shown by the evidence to be

less than four hundred yards from the house from which the money was charged

to have been stolen. The testimony of R. T. HILL on this point is as

follows: "From where common report in the neighborhood says that the line

between Travis and BASTROP counties is, is two hundred and fifty yards from

my house, from which the money was taken; I have stepped the distance." This

line had been in existence nearly twenty-eight years, and acknowledged as

the dividing line. There is nothing in the cross-examination of this

witness, neither is there any evidence in the statement of facts, that

either weakens or contradicts the evidence for the State on the question of

the county line.

The 3d assignment of error, "that the court erred in not granting a new

trial, and in overruling the defendant's motion for a new trial," is based

on the grounds set out in the motion for a new trial, which are as follows:

"The verdict of the jury is contrary to the law as given in the charge of

the court. The verdict of the jury is contrary to the evidence as adduced on

the trial of this cause. The verdict of the jury in assessing the punishment

of defendant at five years in the penitentiary is cruel and excessive."

*4 The first ground for a new trial it is not necessary to consider. The

second, that the verdict of the jury is contrary to the evidence, does not

appear to be borne out by an examination of the statement of facts in the

record.

The defendant was indicted for stealing from the dwelling-house and

possession of R. T. HILL, and without his consent, one hundred and sixty

dollars, the property of him, I. C. CALDWELL. The uncontradicted evidence of

the witness proved that the money was in the trunk, and it locked, when the

white family went to church in the morning; on their return, in the evening,

Mr. HILL, the owner of the trunk, unlocked it, and missed the one hundred

and sixty dollars, mostly in silver, of CALDWELL's, and one hundred and

forty dollars in gold and twenty in silver belonging to himself. The

witness, CALDWELL, learning that defendant had been there, started next

morning, traced the accused to Webberville, and there learned from the

ferryman that the accused had crossed the river at the ferry the evening

before. Witness went on to the railroad, learned that he had gone down on

the last train, followed down and arrested defendant at Hempstead, in Austin

county; carried him to this city, and delivered him to the sheriff of Travis

county. The accused had on his person when arrested two hundred and

ninety-three dollars and forty-five cents, ($293 45,) chiefly gold, and

among the keys found in his possession at the time of his arrest was one

which unlocked the door of Mr. HILL's house. The evidence showed further,

that he had been in the employ of Mr. HILL a short time; that he told HILL

he had no money; that he received his wages from time to time in small sums;

that when discharged there was coming to him on his wages only the trifling

sum of five dollars and twenty-five cents. The negro woman, Betty, testified

that, having gone from the kitchen to her house while the white family were

absent at church, she found the defendant changing a portion of his

clothing; that he accompanied her to the kitchen, and had something to eat;

that she was in the kitchen when he came to her house; how long defendant

was there before she saw him witness could not tell; he walked about the

yard; witness saw him off and on about every ten minutes; did not see him go

into Mr. HILL's house; he stayed there about an hour; she saw him when he

left the premises. This witness stated that defendant told her on the day

referred to "that he was going to Austin to gamble; that he had in his life

won money at playing cards, and that he intended to try it again." Witness

had frequently seen the keys found on the person of the accused; they

belonged to him. Defendant told her that the door-key (which unlocked the

door of HILL's house) belonged to his father's door, and was one that he had

before he left his father's house. This witness stated "there were three

families of colored people living on the premises outside of the yard

palings," and within a few hundred yards of Mr. HILL's house there were as

many as twenty or twenty-five colored people living." She further stated

that two colored men came into the yard that day, and it was customary for

them to do so. This embraces all the material facts in the case, and, taking

them in their regular and necessary order, they form the links of an

unbroken chain of evidence that encircles the defendant, and from which he

has not attempted to escape by explanation or opposing evidence; and from

the ability and interest displayed in his behalf by his counsel it is

reasonable to presume that if evidence existed it would have been produced,

or an effort made to obtain it.

*5 It is true, as stated in the brief, that some other person residing in

the immediate neighborhood may or might have taken the money; but applying

to the evidence in this case the tests which men apply when endeavoring to

form a final judgment on any of the important transactions of ordinary life,

every conclusion must be that the defendant was guilty as charged in the

indictment.

The evidence shows him to have been well acquainted with the premises. Among

the keys found on his person is one which unlocked the door of the house;

the explanation is that it belonged (from his statement) to his father, and

was the door-key of his father's house. What reason there was for his

carrying this key with him while in the employment of R. T. HILL, and why he

carried it away to Hempstead, is not shown. It could not be for its value,

and it certainly was not for legitimate use. On the day of the theft he

makes his visit to the house or premises of Mr. HILL. And for what purpose

did he remain and loiter around the yard for an hour? Here he is found with

a key to open the door in his possession, and evidently staying there to

find an opportunity to do so unobserved. The trunk containing the money is

in the room, and the key to unlock the trunk hanging with a bunch of

household keys in the room in their usual place. On that day the money,

about three hundred and twenty dollars, in gold and silver, is stolen from

the trunk. Defendant told the witness Betty on that day that he was going to

Austin; yet he crosses the river that evening at Webberville, takes the

train going down instead of up the country, and is arrested at Hempstead.

Upon his person is found two hundred and ninety-three dollars and forty-five

cents, ($293 45,) principally in gold, being about the amount stolen, after

deducting traveling expenses, &c., &c. The question may be asked, where did

he obtain this amount; was it by honest industry, or gaming during a week or

two, or at any time previous to his arrest? He does not account nor attempt

even to account for it, and his own statements show he had no money when in

HILL's employ or when he left, save $5 25. Taking, then, all these

facts--his knowledge of the premises; his visit there during the absence of

the family; his loitering around the house during an hour, to the cook's

knowledge, and how long before she found him in her house she does not know;

his telling her he was going to Austin, and his leaving the neighborhood,

passing through BASTROP and Washington counties, and arrested at Hempstead,

in the direction opposite to that he stated he was going; among his keys one

found that unlocked the door of the house from which the money was stolen,

the key not belonging to him, and the only fact connected with its

possession that he told the witness it belonged to his father's house;

without funds when he was discharged by Mr. HILL, and the day after the

theft with two hundred and ninety-three dollars and forty-five cents ($293

45) in his possession, a sum nearly equal to the amount stolen--against

these facts not one word of evidence was offered to break or weaken their

force against him.

*6 All the facts and circumstances of this case, when taken together, were

sufficient to lead the mind of the jury to the deliberate conclusion that

the accused, and no other person, committed the offense charged. There was

therefore no error in refusing a new trial.

That the verdict is cruel and excessive in assessing the punishment at five

years in the penitentiary is not apparent. The jury had the exclusive power

to determine the amount of his punishment within the periods declared in the

Penal Code; having done so, it is not a matter of revision.

The judgment is

AFFIRMED.