SUPREME COURT RECORDS PAGE 4

 

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Court of Appeals of Texas.

WILLIAM PERKINS

v.

THE STATE.

1876.

 

 

It is an abuse of discretion to refuse a second continuance because of the

absence of witnesses, where accused had caused them to be attached, and they

had given bonds for their attendance, and did attend court until the day of

trial, when they left without his procurement, and where accused was

reasonably certain of being able to compel their attendance at the next

term, though there was another witness who could testify to the facts

expected to be proved by the absent witness, such witness being interested

in seeing accused convicted.

 

*1 APPEAL from the District Court of Williamson. Tried below before the Hon.

E. B. TURNER.

John DOWELL and Phil. CLAIBORNE, for the appellant.

A. J. PEELER, Assistant Attorney General, for the State.

 

 

ECTOR, Presiding Judge.

The defendant was indicted, July 16, 1874, for the theft of a gelding, the

property of J. W. MEARS. He was tried January 11, 1876, found guilty, and

his punishment assessed at five years in the penitentiary. Defendant made an

application for continuance, January 11, 1876, which was overruled upon

certain grounds stated by the judge in the court below; to which ruling the

defendant took a bill of exceptions.

After giving the style and number of the case, the court and term, the

following is a copy of defendant's application for a continuance:

"Now comes the defendant in the above entitled and numbered cause, in his

own proper person, who, after being by me duly sworn, upon oath says that

defendant cannot safely go into trial in said cause at this term of the

court for want of the testimony of Charles COTTINGHAM, William LITTON, and

Bat LANE, all of whom are resident citizens of the county of BASTROP, and

state of Texas, whose testimony is material to aid defendant in his defense

in said cause. Affiant says that he expects and can prove, by each and every

one of said witnesses, that affiant is not guilty of the charge as alleged

in said indictment filed in this cause; and, further, that affiant bought

and purchased said gelding affiant is charged to have stolen from one James

FULLER, and paid him therefor a reasonable consideration, and that affiant's

connection with said gelding is perfectly innocent, and in perfect

conformity with law. That affiant has used due diligence to procure the

attendance and testimony of said witnesses at this term of the court, by

causing an attachment to be issued to said county of BASTROP for said

witnesses on the 10th day of March, A. D. 1875, which was duly served upon

said witnesses by the sheriff of BASTROP county, and the bond of said

witnesses taken by said sheriff of BASTROP county, on the 15th day of April,

1875, for the appearance of said witnesses at the next term of the court

thereafter, and from day to day until this case was tried; and that said

witnesses have, since said bond was taken, been in regular attendance upon

this court, except upon this day, and that affiant does not now know why

said witnesses are not in attendance; that said witnesses are not absent by

the procurement or consent of affiant; that this application is not made for

delay; that the testimony of said witnesses cannot be procured from any

other source; and that affiant has a reasonable expectation of procuring the

attendance of said witnesses in this cause at the next term of the court;"

which was duly signed and sworn to before the clerk of the court.

The defendant took a bill of exceptions to the action of the court on his

application for continuance. The district judge, in overruling the

application for continuance, as stated in said bill of exceptions, did so on

the following grounds:

*2 "1st. The court having commenced on the 3d day of January, 1876, and the

appellant, being out on bail, should have taken some steps to procure his

witnesses.

2d. The application itself discloses the fact there is another man by whom

the fact, to wit, that appellant had purchased the gelding, whose evidence,

if the fact be true, might be obtained; at any rate, if there was any reason

why such person could not be procured, that reason should be stated in the

affidavit."

As to the first point, as has been said by the counsel for the defendant in

their able brief, we simply say that no better diligence could have been

used by appellant to obtain his witness than was used by him and stated in

his application. Defendant states that he had an attachment issued for his

witnesses on the 10th day of March, 1875, which was served upon them by the

sheriff of BASTROP county, and their appearance bonds taken by him, on the

15th day of April, 1875, for the next term of the district court of

Williamson county, and from day to day until the case was tried; and that

his witnesses, since the taking of their bonds, had been in regular

attendance upon the court, except upon the day when the case was tried. The

defendant used all the diligence the law required to procure the attendance

of said witnesses, and the fact that he was out on bond would not authorize

or require him to take other steps to secure their attendance, and it is an

immaterial question as to when the court commenced or when it adjourned. If

appellant's witnesses had been attached, and were under bond for attendance

upon the court, to testify for the defendant in this case, and had appeared

from day to day until the day when the case was called for trial, and were

then absent without his procurement or consent, we think he had used due

diligence, and that he is not to blame for their non-appearance.

The application states that the testimony of the witnesses cannot be

procured from any other source. We believe this is a sufficient answer to

the 2d ground assigned by the judge for overruling defendant's application.

The defendant distinctly states that the testimony he desires could be

proved only by the witnesses he had attached.

The statute, upon the point of negativing, in the application, the fact that

the testimony can be procured from any other source except the witnesses

named in the application, has done so in a particular way, and used certain

words to express it.

If the defendant did purchase the gelding from James FULLER, as he swears in

his application he did, it is probable that FULLER committed the theft

himself, or that defendant had reason for thinking so, and, if so, he

reasonably believed he could not prove that he purchased the gelding from

him, the said FULLER, by FULLER himself.

The statute prescribes the conditions upon which continuances are granted,

and a party will be entitled to a continuance when he brings himself

strictly within the terms of the statute. That bad men will avail themselves

of this rule, to delay or defeat the ends of justice, would be a good reason

to change the law in regard to granting continuances; whilst the law remains

as it is, we should enforce it. We deem it unnecessary to notice the other

points mentioned in defendant's assignment of errors.

*3 The judgment is reversed and the cause remanded.

Reversed and remanded.

 

 

 

Court of Appeals of Texas.

GEORGE ROBERTSON

v.

THE STATE.

1876.

 

In an indictment for the theft of cattle, a designation of the species is

sufficient-as cow, steer, ox, and the like-without use of the generic term

"cattle," and it was not error to overrule a motion to quash an indictment

for theft of a "beef steer," on the ground that the indictment failed to

allege that the animal was of the "species of cattle."

 

*1 APPEAL from the District Court of BASTROP. Tried below before the Hon. L.

W. MOORE.

The opinion of the court sufficiently states the case.

JONES & SAYERS and J. P. FOWLER, for the appellant.

H. H. BOONE, Attorney General, for the State.

 

 

WINKLER, J.

The appellant was indicted, tried, and convicted in the district court of

BASTROP county on a charge of unlawfully and fraudulently taking from the

possession of G. H. JENKINS, without his knowledge or consent, and with

intent to convert to his own use, "a certain yellow and white pieded beef

steer."

A motion was made to quash the indictment, "because the indictment attempts

to charge the defendant with the commission of a felony, and fails to do so

in that the property alleged to be stolen is not alleged to be of the

species of cattle." The motion to quash was overruled by the court, and the

defendant excepted.

The ruling of the court on the motion to quash is made a ground in a motion

for new trial, which was also overruled. The defendant was then tried on a

plea of not guilty, found guilty by a jury, and his punishment assessed at

confinement in the state penitentiary for a period of four years, and

judgment entered accordingly.

An appeal is taken on the following assignment of errors:

1st. The court erred in its charge to the jury.

2d. The court erred in refusing the charges asked by the defendant; and,

3d. The court erred in overruling the motion for new trial.

Considering the several alleged errors in the order of presentation, as to

the 1st we need do no more than say we have examined the charges as given by

the court, and, when taken in connection with those given at the request of

the defendant, we are of opinion that the law of the case, as made by the

evidence, was correctly given to the jury, and as favorably for the accused

as the testimony warranted.

The 2d error assigned, refusing to give certain charges asked by the

defendant, is not maintainable. Those portions of the several charges

refused which were at all applicable to the case are embraced substantially

in the charges given. The remaining portions were inapplicable, and could

only have tended to confuse the minds of the jury.

As to the remaining error assigned--to wit, the overruling of the

defendant's motion for new trial--we are of opinion this ruling of the court

below was proper. The question of the guilt or innocence of the accused was

fairly submitted to the jury. The evidence on the part of the prosecution

was sufficient to fix on the defendant the wrongful taking of the animal,

under circumstances amounting to theft under the law, and sustains the

verdict of guilty found against him by the jury. There is nothing in the

record to justify us in concluding that the jury exceeded the bounds of a

proper discretion in fixing the punishment as they have done, it being

within the limits prescribed by the statute. The prosecuting witness proved

ownership in himself, not in Burleson.

*2 Nor do we think the court erred in overruling the motion of defendant to

quash the indictment. The indictment charges theft of "a beef steer." The

objection urged against it is that it fails to allege that the animal was of

the "species of cattle."

Repeated decisions of the supreme court show that in charging theft of

cattle it is only necessary to charge the species--as cow, steer, ox, and

the like-- without the use of the generic term, "cattle." This was settled

law in Texas before the organization of this court, and, as an investigation

of the authorities will abundantly show, correctly settled.

In PARCHMAN v. The State reference is made to the following: Bishop on Stat.

Crimes, sec. 440, refers to The State v. PEARCE, Peck, 66; The State v.

HAMBLETON, 20 Mo. 452; The State v. ABBOT, 20 Vt. 537; TYLER v. The State, 6

Humph. 285; Whart. Am. Cr. Law, 4th ed., sec. 377, and references there

made.

The indictment in this case, in using the word "beef steer," is sufficient,

without the statutory word "cattle," and the motion to quash was properly

overruled.

We have carefully examined all the questions presented in the record and by

counsel in argument, and have not found anything which would warrant us in

reversing the judgment of the district court of BASTROP county rendered in

this case.

Affirmed.

 

Supreme Court of Texas.

CALVIN THOMPSON

v.

THE STATE.

1875.

 

A statement in the concluding argument by the district attorney, insisting

that the fact that the acting justice of the peace held accused to bail was

evidence that the justice thought him guilty, is a reversible irregularity.

 

In an indictment for theft of several articles of the aggregate value of

over $20, it is sufficient to allege such aggregate value. It is not

necessary that the separate value of each article be set out.

 

To convict upon an indictment for theft of several articles, where the

aggregate value only of such articles is alleged, the testimony must show

the theft of all of the articles alleged to have been stolen.

 

On trial of an indictment for theft, a charge that mere possession of

property recently stolen is prima facie evidence of theft, which casts upon

the defendant the necessity of explaining such possession, is error; the

rule being that the possession of property recently stolen is evidence

against the accused, which may be considered by the jury in connection with

the other testimony in the case.

 

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

Calvin THOMPSON was indicted for theft of "four barrow hogs and two sow hogs

of the aggregate value of thirty dollars."

On the trial the owner of the hogs testified that his "hogs were missing

about first of April, 1874. Some time about the first of July the two sows

came home without the others and in the mark of the defendant."

* * "When the two sows came back I told Jim WILLIAMS, a freedman, who was

living with me, to go to the defendant's house and look for my hogs. In a

day or two WILLIAMS told me he saw four of my hogs in a pen on the premises

of the defendant. I then applied for a search-warrant and went to

defendant's house. This was about 6th July; found four hogs in defendant's

pen, being the four barrows described in the indictment."

There was a conflict in the evidence as to ownership. THOMPSON's claim to

the hogs had been public, and no attempt at concealment of the hogs was

shown. No other evidence was given as to the two sows.

M. W. TRIGG, for defendant, testified that some time in the spring of 1874

defendant came to witness for advice about a lot of his hogs that had come

up with their mark changed. Witness advised him he had better go slow about

taking hogs--to put up the hogs and keep them until somebody came and

claimed them, in which event he could try the right of property in the hogs.

This was before the arrest.

H. J. WAMEL, for defendant, testified that he was a justice of the peace in

BASTROP county; that about the last of March or first of April witness went

to defendant's house to see about the election, which was soon to come off;

while there defendant called the attention of witness to and asked witness

to look at some of his hogs, the marks of which had been recently changed.

The defendant asked witness what he must do about them. Witness told

defendant to put them up in a pen and let the person who had changed the

mark come and claim them; that in that way the party could be caught and

prosecuted. These hogs were the same described in the indictment.

The judge, after defining theft and its punishment, charged the jury as

follows: "If hogs are going at large in their range, they are in possession

of the owner, and if they are taken from the range, they are taken from the

possession of the owner.

"Possession of property which has been recently stolen is prima facie

evidence of theft, and it devolves upon the defendant to explain such

possession so as to rebut that presumption or so as to raise a reasonable

doubt in your minds of his guilt.

If the defendant took the hogs in good faith, believing them to be his own,

then he is not guilty of theft, and you should return a verdict of not

guilty."

The defendant asked the following instructions:

*2 "A preponderance of testimony in favor of the State in a criminal

prosecution for theft as to the title to the property is not sufficient to

warrant a conviction.

But when there is a conflict of testimony relative to the title in order to

convict the defendant of theft, the State must show beyond a reasonable

doubt that the defendant took the hogs in the indictment not only unlawfully

but fraudulently."

Which was refused by the judge because "sufficiently given in the general

charge, so far as it applies to this case."

In the concluding argument by the district attorney it was insisted that the

fact that the other witness, WAMEL, acting justice of the peace, held the

witness to bail, was evidence that said WAMELL thought him guilty, to which

the defendant objected upon the ground that the argument was not fair and

legitimate, as the defendant could not reply, and appealed to the court, but

the court in the presence of the jury told the district attorney to proceed.

The jury found the defendant guilty, and assessed his punishment at two

years' confinement in the penitentiary; upon this, judgment was rendered.

Motions for new trial and in arrest of judgment were overruled and defendant

appealed.

JONES, SAYERS & RUSSELL, for appellants.

A. J. PEELER, Assistant Attorney General, for the State.

 

 

MOORE, ASSOCIATE JUSTICE.

Whenever the value of the property alleged to have been stolen is an element

for determining the grade of the offense or the extent of its punishment, it

is unquestionably necessary to allege in the indictment the value of the

stolen property. Obviously, therefore, when the difference between grand and

petit larceny is distinguishable merely by the value of the property stolen,

not only must its value be stated, but where several articles are stolen,

unless the value of each article stolen is alleged instead of the aggregate

value of the whole, if there is a failure in the proof of the larceny of

some of them, a general verdict would not be justified by the evidence or

warrant a judgment, because in such case the indictment would not show the

value of the articles proved to have been stolen or the grade of offense of

which the defendant should be adjudged guilty. It is therefore generally

customary, and is certainly more prudent, to allege the separate value of

the articles stolen, rather than to charge merely their aggregate value.

Still, if the indictment is in all other respects sufficient, on sound

reason it cannot be held to be defective merely because it alleges the

aggregate value instead of the several individual values of the articles

charged to have been stolen. That under such character of indictments

parties may escape conviction for the lesser grade of offense, is an

objection to the policy, and not to the legal sufficiency of such

indictments.

But while we do not think the motion to arrest the judgment on this ground

should have been sustained, we think the application for a new trial should

have been granted, because the verdict is not warranted by the evidence. In

all ordinary criminal cases it is said that a general verdict of ""guilty"

is a finding for the State of everything which is well charged in the

indictment. Thus, it finds that the defendant stole every article specified

in the indictment, and that they are of the value charged. If the evidence

is not sufficient to warrant these conclusions, then it cannot be said that

a general verdict which imports them is justified by it or should be

sustained. In this case there certainly can be no pretense that the

testimony in the record will warrant the conviction of appellant for

stealing the two sows. "That they came home some time about the first of

July in the mark that defendant gives," which is all the testimony, is

altogether insufficient to sustain the verdict as to them, is too obvious

for comment. Yet the only testimony as to value was with reference to the

aggregate value of all the hogs as laid in the indictment. And even as to

the four barrow hogs, while there is much and strongly conflicting testimony

as to which of the claimants was the owner of them, there is little, if any,

credit to be given to appellant's witnesses, which warrants the belief that

they were fraudulently and feloniously taken by him.

*3 In view of the facts of this case and the issue presented by them, there

was error in the charge given by the court as well in its refusal to give

that asked by the defendant. When property is shown to have been recently

stolen and there is no question as to its title, but the point in dispute is

whether the defendant is the thief, unquestionably proof of possession of

the property by the defendant shortly after it was stolen may be adduced as

evidence tending to prove defendant guilty of the theft. But even then it is

not strictly correct to charge the jury that mere possession of property

recently stolen is prima facie evidence of the theft, which devolves upon

the defendant the necessity of explaining such possession, so as to rebut

the presumption or raise a reasonable doubt in the minds of the jury of

defendant's guilt.

Such charge reverses the rule as to the burthen of proof, and transfers it

from the State to the defendant. The charge in effect tells the jury, if

defendant is shown to have been in possession of the stolen property, they

should find a verdict against him, unless he can rebut the presumption or

raise a reasonable doubt in their minds of his guilt, while the true rule is

that the possession of property recently stolen is evidence against the

accused, which, like all other evidence, is to be taken and considered by

the jury in connection with the other testimony in the case. And unless the

jury, on consideration of it in connection with the other evidence before

them, are satisfied of the guilt of the accused beyond all reasonable doubt,

they should acquit him. In this case there was no controversy in regard to

the possession of the four barrows in question. Appellant not only admitted

possession, but claimed them as his property, and supported his claim by

strong testimony tending to establish its truth. Under such circumstances,

the issue upon which the case should have been decided was whether the hogs,

if not his property, were taken by the defendant, believing them to be his,

or whether he took them fraudulently and with the intent to deprive the

owner of them. This issue is clearly presented in the charge asked by

appellant and it should have been given.

The character of discussion indulged in by the district attorney in his

concluding address to the jury, as shown by the bill of exceptions, was not

justified or warranted by the evidence in the case or what had been said by

appellant's counsel, to which it is claimed to have been a legitimate

response. And such line of argument should not have been insisted upon by

him or allowed by the court when objected to by defendant's counsel. But

whether it was, notwithstanding the charge of the court in reference to it,

given at the instance of defendant, calculated to do him such injury as

should, if it stood alone, require a reversal of the judgment, need not on

the present occasion be decided, as this must be done for the reasons

already stated. We deem it, however, of sufficiently grave importance and so

highly objectionable as to require the decided condemnation of the court.

Zeal in behalf of their clients, or desire for success, should never induce

counsel in civil causes, much less those representing the State in criminal

cases, to permit themselves to endeavor to obtain a verdict by arguments

based upon any other than the facts in the case and the conclusions

legitimately deducable from the law applicable to them.

*4 The judgment is reversed and the case remanded.

REVERSED AND REMANDED.

Supreme Court of Texas.

JOHN GORMAN ET AL.

v.

THE STATE OF TEXAS.

1873.

 

*1 A bail bond which describes A. B. as principal "conditioned, that whereas

an indictment has been preferred against A. B.," etc., "now if the above

bounden ______ ______ shall make his personal appearance at the next term,"

etc., if in other respects good, is not vitiated by the failure to insert

the name of A. B. after the word "bounden," but may be enforced as the bond

of A. B.

APPEAL from BASTROP. Tried below before the Hon. J. P. RICHARDSON.

 

A bail bond which describes A. B. as principal, "conditioned that whereas an

indictment has been preferred against A. B.," etc., "now if the above

bounden _________ shall make his personal appearance at the next term,"

etc., if in other respects good, is not vitiated by the failure to insert

the name of A. B. after the word "bounden," but may be enforced as the bond

of A. B.

JONES & SAYERS, for appellant. The omission of the name of the principal, to

wit, "John GORMAN," in the condition of the bond, is fatal. The bond being

statutory, must comply in letter as well as in spirit with the requirements

of the law, upon which its validity depends. By reference to art. 2732, Pas.

Dig., it will be perceived that the second requisite of a bail bond is

imperative, and unless this requirement is satisfied the bond will be

nugatory. In the case at bar the name of the principal is omitted, and that fact

should have been held as a reason sufficient for the discharge of the defendants

(appellants) in the court below.

Attorney General, for appellees.

 

 

OGDEN, J.

There is no error in the judgment of the district court in this case. John

GORMAN, as principal, with others as sureties, entered into bond in the sum

of $200, conditioned that, whereas, an indictment had been preferred against

John GORMAN, etc. * * Now if the above bounden _________ shall make his

personal appearance at the next term of the district court, to be holden at

the court house in the town of BASTROP, on the fourth Monday in November,

1871, to answer said indictment, etc. It is contended that the blank in the

condition after bounden vitiates the bond for uncertainty, but we do not so

understand the force of the bond nor the requirements of the statute.

John GORMAN was the principal in the bond; he was the party indicted, and it

is very clear that he was the defendant, and the one to answer to the

indictment found against him, and if his name had been inserted in the blank

it would not have made the conditions more certain or definite. The above

bounden meant John GORMAN, the defendant, and could, by no legitimate

construction of the language or the law, have reference to any one else.

*2 The judgment is affirmed.

Affirmed.

 

 

Supreme Court of Texas.

A. W. MOORE

v.

THE STATE.

1872.

 

*1 1. A bail bond, taken by a committing magistrate before indictment found,

was conditioned for the appearance of one H., "at the next term of the

District Court, to answer such bill of indictment as may be preferred

against him by the Grand Jury of B. county." Held, that the condition of the

bond is sufficient. The law does not require as great particularity in a

bond taken by a committing magistrate as it does in a bond taken before a

District Court after indictment found.

2. A magistrate by whom a party had been committed, had no authority to take

and approve a bail bond after the adjournment of his court.

APPEAL from BASTROP. Tried below before the Hon. I. B. MCFARLAND.

 

A magistrate by whom a party has been committed has no authority to take and

approve a bail bond after adjournment of his court.

 

A bail bond taken by a committing magistrate before an indictment is found,

conditioned for the appearance of the accused at the next term of the

district court to answer such bill of indictment as may be preferred against

him by the grand jury, is sufficient.

There is no occasion for a statement of the facts.

JONES & SAYERS, for the appellant.

Wm. ALEXANDER, Attorney-General, for the State.

 

 

OGDEN, J.

The first objection to the bail bond is not well taken. The law does not

require as great particularity in a bond taken by a committing magistrate,

as it does in a bond taken before the District Court after indictment found.

But under the authority of The State v. RUSSELL, 24 Texas, 505, we must

decide that the magistrate, before whom the party had been committed, had no

authority after the adjournment of his court, to take and approve a bail

bond. The judgment is therefore reversed, and the cause dismissed.

Reversed and dismissed.

 

 

Supreme Court of Texas.

GEORGE THOMPSON

v.

THE STATE.

1871.

 

*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 WALTERS 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.

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,

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.

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."

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; 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.

Supreme Court of Texas.

THE STATE

v.

GEORGE ALLEN AND OTHERS.

1869.

 

*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.

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.

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.

 

 

Supreme Court of Texas.

JAMES H. GOODMAN

v.

E. H. MCGEHEE.

October, 1868.

 

*1 Confederate treasury notes were promises of the Confederate States to pay

a certain number of dollars therein mentioned to bearer, within a specified

time, after a treaty of peace between the Confederate States and the United

States, and as such they were intended to aid the rebellion, were in

violation of the constitution of the United States, and were illegal and

void.

If any part of the entire consideration for a promise, or any part of an

entire promise, be illegal, whether by statute or at common law, the whole

contract is void, and every executory contract, the consideration of which

is illegal on either side, is void.

Parol evidence to show that a contract is founded on an illegal

consideration is admissible.

If a contract be illegal, it may be avoided by a proper plea, even though it

be a specialty, and the illegality be not apparent on the face of the

instrument.

Confederate money, whether it forms the consideration on the part of the

obligor or obligee, is illegal.

 

[LINDSAY, J., concurred, but said: "I cannot agree that a contract, the

consideration or performance of which is illegal, is void."]

ERROR from BASTROP. The case was tried before Hon. JOHN IRELAND, one of the district

judges.

GOODMAN sued MCGEHEE on a note, dated 18th of May, 1863, due at one day

after date, for $700, with interest at ten per centum per annum. The

defendant pleaded that the note was given for treasury notes of the

Confederate States of America, and that they were valueless; that he

afterwards tendered the full amount of said notes "in the new issue," which

the defendant refused to receive. The court charged the jury in accordance

with the scaling ordinance.

The jury found a verdict for $615, of which the plaintiff remitted $115. The

defendant prosecuted error. It was proved that the note was given for

Confederate treasury notes, and their value at the date of the note was

proved to be about fifty cents in the dollar.

 

Contracts, the basis or consideration of which was Confederate money, are

illegal, and cannot be judicially enforced.

 

Parol evidence is admissible to defeat a recovery on a note, valid on its

face, by showing that it was given in consideration of Confederate treasury

notes, such notes being made payable only after a treaty of peace between

the United States and the Confederate States, and being issued in aid of the

Rebellion, and hence constituting an illegal consideration.

A. D. MCGINNIS, for plaintiff in error. The plaintiff in error insists on a

reversal of the judgment of the court below and a dismissal of the case on

the principle settled by this court in the cases of SMITH v. SMITH, 30 Tex.

754, and LINDER v. BARBEE [not published], decided by this court at the last

Austin term.

*2 In this case, as in the case of LINDER v. BARBEE, the con sideration of

the note sued on was treasury notes of the late so-called Confederate

States, as shown by the sworn plea of the plaintiff in error, and the

testimony of the witnesses for both parties, as well as the charge to the

jury of the court below, who also authorized the jury to estimate the

difference between specie and United States currency.

It is insisted, also, that if this court could allow the enforcement of a

contract for treasury notes of the late Confederate States, issued for the

purpose of aiding the rebellion against the general government, yet the

proof in this case shows the plaintiff in error often tendered the full

payment of the note sued on, but the same was not accepted.

No brief for the defendant in error has been furnished to the reporter.

 

MORRILL, C. J.

Defendant's answer alleges that the consideration of the note was

Confederate money. The testimony fully establishes the facts set forth in

defendant's answer. The judge charged the jury that they should find the

value of Confederate money at the maturity of the note and render verdict

thereon.

The several exceptions to the pleadings and the orders and rulings in the

district court call upon us to decide:

1. Whether the consideration, as alleged in the answer and admitted to be

proved, is illegal.

2. Whether a note given for an illegal consideration is void.

3. Whether the facts set forth in the answer, to show the note void, can be

pleaded.

As to the first question: Confederate money was and is an obligation or a

promise of the Confederate States to pay a certain number of dollars,

therein mentioned, to bearer in a specified time after a treaty of peace

between the Confederate States and the United States. It did not purport to

be of any value unless the rebellion should prove to be a success. The

necessary consequence whereof was, that every one who was the holder and

owner of these notes was or would be interested in the success of the

rebellion in ratio proportional to the amount which he might own. If we

could conceive of any citizen of the United States to be indifferent as to

the success of the two great powers, the possession and ownership of these

promises would have a tendency to create a bias in favor of the Confederate

government. But when we take into consideration that these Confederate

promissory notes were the only money, or substitute for money, that the

Confederate States had to carry on the war, without which the war would have

been of short duration, and the rebellion would have terminated in a

comparatively brief space of time, and that its value depended upon its

circulation, the inference necessarily follows that whoever aided in its

circulation and treated it as of value, in the same degree aided the

rebellion and injured the United States.

With this view of Confederate money, and taking into consideration that the

supremacy of the constitution of the United States and the laws passed in

pursuance thereof are expressly acknowledged in the original law of this

state, we cannot regard a contract for buying and selling Confederate money

as legal. If the war of the Confederate States against the United States was

illegal, it needs no great intellect to discover that every act of all who

assisted in this war was pro tanto illegal.

*3 The second question is, whether a note given for an illegal consideration

is void?

In 1 Pars. Con. 380, it is stated: "In general, if any part of the entire

consideration for a promise, or any part of an entire promise be illegal,

whether by statute or at common law, the whole contract is void."

In 1 Story, Con. § 485, after stating, "contracts are sometimes said to be

illegal, either because the consideration of the promise is illegal or

because the promise itself is illegal," he proceeds: "Every executory

contract, the consideration of which is illegal on either side, is void."

We do not deem it necessary to multiply authorities, but will conclude our

remarks on this point by repeating the words of Chief Justice HEMPHILL, in

JAMES v. FULCROD, 5 Tex. 520: "That contracts against public policy are

void, and will not be carried into effect by courts of justice, are

principles of law too well established to require the support of

authorities."

The other question is the last proposed, Whether a party is permitted to

plead this illegality? This is, in fact, the main, if not the only, question

in controversy in the case. With great plausibility authorities are arrayed,

going to show that parol evidence cannot be admitted to vary or explain or

contradict a written contract, unless fraud, etc., are alleged. That the

contract is free from all ambiguity, and that there is no pretense of

imposition, etc.; and, however onerous it may seem, yet courts have no power

to grant relief where there is no concealment or violation of the rules and

laws of equity. It may be true that courts will never interpose their power

for the benefit of a party, where he has made a contract, with a full

knowledge of all the facts and without restraint, however onerous it may be.

At the same time courts will never give any aid in enforcing an illegal

contract. The inquiry is not whether parol evidence can be admitted to

explain or alter a written contract, but whether the contract really was

illegal; and this inquiry is not for the relief or benefit of a party, but

because courts will never be the tools or agents or instruments for doing

what is contrary to law.

The interest of either or both of the parties is not considered where both

have attempted to do an illegal act. "No polluted hand shall touch the pure

fountain of justice." Whatever the supposed contract may be, whether the

illegality is apparent or concealed, as soon as it may appear evident to a

court that it is illegal, it is no contract, because it is illegal. And a

contract is no less illegal because it is sugar-coated. Courts will divest

all illegal acts of their verbiage, and having discovered their nude

deformity, drive them out of the temples of justice. "Procul, O procul, este

profani."

*4 In Cow. & Hill's notes to Phill. Ev. part II, p. 612, note 304, we find:

"The rule confining the operation of parol evidence within the limits of

strict exposition or interpretation assumes that the instrument has a legal

existence and is valid. Testimony to show it to be void is always pertinent,

no matter who are the parties or in what court the question arises."

In the case of PARKER v. DECKER, 10 Mass. 273, the court said: "By the

common law deeds of conveyance or other deeds, made contrary to the

provisions of a general statute or for an unlawful consideration, or to

carry into effect a contract unlawful in itself, or in consequence of any

prohibitory statute, are void ab initio, and may be avoided by plea, or on

the general issue of non est factum; the illegality may be given in evidence

to show that the writing executed by the defendant is not a deed by any

lawful construction or effect."

In PAXTON v. POPHAM, 9 East, 207, Lord ELLENBOROUGH, in delivering the

opinion of the court, said: "According to the doctrine of the chief justice

in COLLINS v. BLANTEM, unless the obligor were permitted to contravene the

condition of the bond by plea, showing the truth of the transaction, a bond

would be made a cover for every species of wickedness and illegality. It

would only be necessary to have a bond with a condition stating the

consideration of it as widely from the truth as possible.

Since the case of POLE v. HARROBIN, in 1782, it has been generally

understood that an obligor is not tied up from pleading any matter which

shows that the bond was given upon an illegal consideration, whether

consistent or not with the condition of the bond."

In 1 Story, Con. § 541, we find: "If the consideration be illegal, the

contract may be avoided by a proper plea, even though it be a specialty and

the illegality be not apparent on the face of the instrument."

In SCHMIDT v. BARKER, 17 La. 264, the court said: "This court has often held

that it will not lend its aid to settle disputes relative to contracts

reprobated by law. It will notice their illegality ex officio, and allow it,

without any plea, at any stage of the proceedings."

In 1 Bouv. 222, it is said, "A contract, according to Pothier, is a

convention or agreement, by which two or more persons consent to form

between themselves some lawful engagement. All obligations derive their

force from the law, and therefore every obligation supposes a superior law,

which binds us to the performance."

We have made these numerous quotations from elementary writers and reports

of the highest authority, and they all unite in sustaining the positions we

have assumed, that a contract, the consideration or performance of which is

illegal, is void.

*5 2. That Confederate money, whether it forms the consideration on the part

of the obligor or the obligee of the contract, is illegal.

3. That this illegality can be pleaded.

And as this case falls under the condemnation of these principles, it is

ordered that the judgment be reversed, and the cause

Dismissed.

 

 

LINDSAY, J.

In this case, concurring as I do in the general conclusion of the opinion

delivered by the chief justice which directs both a reversal of the judgment

and dismissal of the cause from the dockets of the courts, because of the

illegality of the contract, yet I cannot give my official sanction to some

of the deductions made from the authorities quoted and relied upon. I fully

concur in the correctness and just reasoning of those authorities. But in my

view they do not warrant the inferences drawn from them in the opinion, and

which would go to the world as the unanimous opinion of this court if this

dissent was not made manifest. While I fully agree that every contract made

in violation of law, whether by parol or in writing, will be, and ought to

be, universally declared by the courts to be a nullity; in other words, that

all illegal contracts are and should be declared void; and, though they may

be reduced to writing, that a plea or defense of illegality may be properly

set up and established by parol proof, I am not prepared nor willing to go

so far as to unite in the declaration, as a legal maxim, "that a contract,

the consideration or performance of which is illegal, is void."

I cannot give my assent to such a proposition. A very legal contract might

be very illegally performed to the satisfaction of the contracting parties,

and yet there might be no vice in the contract. Performance is no inherent

part of the contract for the exposition of courts of justice. If the

subject-matter about which the contract is made in writing is legal, and

there be no stipulation in it for performance in an illegal way, parties

will not be heard to allege such illegal understanding. It is the

subject-matter about which contracts are made that constitutes their

legality or illegality. And it is because of the turpitude or unlawfulness

of the subject-matter that courts refuse to entertain jurisdiction of them,

and always dismiss them from consideration. Many a contract, perfectly legal

in itself, has been illegally performed, in the progress of the late war,

when paid off in Confederate money. Where so accepted by the payee

voluntarily, it was at least an accord and satisfaction between the parties,

though an illegal performance. Thus much I feel myself bound to say in

justice to my own legal convictions.