HEHDEBSOH, Judge.
Appellant was convicted of murder in the second degree, and his punishment assessed at twenty-five years confinement in the penitentiary, and he appeals.
Appellant was indicted in the District Court of De Witt County at the December term, 1891, for the murder of Philip Brassell, alleged to have been committed in said county on the 19th of September, 1876. In 1893 the venue of the case appears to have been changed from De Witt to Gonzales County. In July, 1896, the venue of the case was changed from Gonzales to Hays County, where the trial and conviction in this ease subsequently occurred. The theory of the State, which was supported by evidence, shows that the killing was done at night, by a crowd of armed men who came to the house of deceased, masked, and took deceased and his three sons from their home, under the pretext of being shown the way to a neighbor’s house. When they had proceeded a short distance from the house, deceased and his sons refused to go any further, and thereupon deceased and his oldest son were shot down. The two younger sons were permitted to escape. The State’s testimony shows that there were ten or fifteen persons in the crowd. Several were identified; among others, defendant. The State’s evidence also tends to show that defendant fired the shot which killed deceased, Philip Brassell. Ho special grudge was shown between defendant and deceased, but the homicide appears to have been committed cm account of a feud existing between certain factions in De Witt County at the time; appellant and his companions being on one side, and deceased "belonging to the other faction. Appellant relied on his plea of not guilty, under which he claims that the State’s evidence failed to identify him as one of the parties composing the alleged mob, and he introduced evidence of an alibi.
Appellant’s first proposition is that the court erred in not setting aside the verdict, because the same was contrary to the evidence, in finding that appellant’s plea of former acquittal was not true. Appellant claimed that he was entitled to a verdict of not guilty on his plea of former jeopardy in that he had been previously tried and acquitted
for the same offense. By an examination of the record it appears that George Brassell was killed at or about the same time that Philip Brassell was, and by the same parties. The testimony tends tó show that the shot which killed George Brassell was fired by another one of the party, and that the shot which killed deceased, Philip Brassell, was fired by appellant. The proof showed that appellant had been tried and acquitted of the murder of George Brassell; and it is claimed that, said acquittal being a part of the same transaction, his acquittal in that case of that homicide is an acquittal in this case, and is a good plea in bar. This contention might be urged with some force if the killing of both parties was done by one and the same act; that is, if the proof showed that but one shot was fired, and it caused the death of both Philip and George Brassell, then it might be a good plea in bar. But here the testimony shows that the parties were killed by distinct acts. Mr. Bishop says: “Obviously there is a difference between one volition and one transaction, and on the view of our combined authorities there is little room for denial that in one transaction a man may commit distinct offenses of assault or homicide upon different persons, and be separately punished for each.” 1 Bish. Mew Crim. Law, sec. 1061; Rucker v. State,
7
Texas Crim. App., 549; Chivarrio v. State, 15 Texas Crim. App., 330; Forrest v. State, 13 Lea, 103; Clem v. State,
42
Ind., 420; Teat v. State, 53 Miss., 439.
Appellant complains that the court erred in refusing to give his special charges to the effect that, if the jury believed beyond a reasonable doubt from the evidence that the killing of Philip and George Brassell was one and the same transaction, the defendant having been acquitted on the charge of killing George Brassell, they should find in favor of defendant’s plea of former acquittal. From what has been said before, we do not believe the court was required to give a charge on this subject at all, inasmuch as the proof showed that the killing of said two parties,_ although in the same transaction, was by two distinct acts. The court gave a charge based on the killing in one transaction in pursuance of a conspiracy, and instructed the jury, in effect, that if the defendant and several other persons conspired together, and agreed and planned the killing of Philip and George Brassell, and in pursuance of such plan and design they killed them, at the same time on the same occasion, such offense, although two persons were killed by two distinct persons, would be but one act, and but one transaction, and no person tried for the murder of either one of the parties is subject to a second prosecution and trial for the murder of the other party killed; “and if you find the facts to be such, you will return a verdict sustaining the special plea of defendant, although you may believe that Dave Augustine was one of the persons planning the offense, and that he actually killed Philip Brassell.” And the court then instructed the jury the converse of said proposition,—that is, if Philip and George Brassell were killed at the same time, and by the same party, but not in pursuance of a previously planned conspiracy, the-
killing of said parties would be distinct acts and separate offenses; and, if they found the killing occurred under such circumstances, to find against appellant’s special plea. We do not think that in this matter the court announced a correct legal proposition; for, notwithstanding the conspiracy as planned by them, if the killing of two persons is by distinct and separate acts, though done at the same time, and as a part of the same transaction, the acquittal for the killing of one of said parties is not a bar to a prosecution for the killing of the other. The conspiracy has nothing to do with it, for two persons were killed by distinct and separate acts, as we have seen above. The charge of the court, however, could not have prejudiced appellant, because the jury were instructed to acquit him on the special plea if they found that the killing was in pursuance of a previously planned conspiracy. They evidently found, if they obeyed the charge of the court, that there was no previous conspiracy. That, however, as we have seen, would be no defense, and whether or not their finding is sustained by the proof makes no difference.
Appellant contends that the court erred in charging the- jury on murder in the second degree, on the ground that there was no evidence to authorize such a charge. We are referred- to no authority in this State, but to a Missouri authority,—State v. Punshon (Missouri Supreme), 27 Southwestern Reporter, 1111. We do not understand said case to- support the contention of appellant. It holds that when the evidence shows that defendant, if guilty, is guilty of murder in the ■first degree, and defendant requests an instruction that the jury shall find defendant not guilty, unless they believe he willfully and with malice aforethought shot deceased, it is not error to modify such instructions to the effect that the jury shall find him “not guilty of murder in the first degree.” But, whatever may be the doctrine in Missouri, we do not think it is the doctrine in this State. The two degrees of murder are so closely allied, the dividing line sometimes being of such a shadowy character, that it has been held that it is best in every case to charge murder in both degrees. Of course, where the case stands out in relief as murder in the first degree, the court will be justified in ■charging only murder in the first degree; but even in such a case the court should charge murder in the second degree. We fail to see how ■appellant could complain, as the charge would be in his favor. Blake t. State, 3 Texas Crim. App., 581; Powell v. State, 5 Texas Crim App., 234; Jones v. State, 29 Texas Crim. App., 338; Fuller v. State, 30 Texas Crim. App., 559.
The failure of the court to charge on circumstantial evidence was not error, inasmuch as the evidence showing the killing of- Philip Bras-,sell, and appellant’s participancy therein, was by positive testimony^ Sylvanus Brassell testified that he saw appellant'when he rode up from the south and shot his father, while he was looking at one Meadows, a codefendant; that his father was just in the act of falling when he turned to leave. Now, the fact that Philip Brassell was found thé
next morning, a little distance from where he was shot and fell, makes; no difference; nor does it make any difference that he was afterwardsshot hy others of the party. He was killed by distinct and separate shots from those which killed George, as the same witness, Sylvanus Brassell, testified to seeing Meadows shoot George Brassell about the time his father was shot by defendant. This, it occurs to us, was positive evidence of the homicide, and did not require a charge on circumstantial evidence.
Appellant further assigns as error that the court erred in not defining the law of conspiracy. While, undoubtedly, the evidence suggested, a conspiracy, yet it was not necessary for the court to define this matter. The charge given on principals was sufficiently comprehensive.
Appellant complains of the action of the court in changing the venue-from De Witt to Gonzales County; and also in changing the venue from Gonzales to. Hays County; and exception appears to have been reserved in the order changing the venue. The venue was changed on the court’s own motion, and on sufficient grounds, as stated in the order. There does not appear to us any abuse in the discretion of the judge in this regard. Art. 613, Code Crim. Proc. There appears a separate motion in the record in connection with the change of venue from De Witt to Gonzales County, controverting the grounds assigned hy the court for the change of venue, and asking to submit proof; but this is-not embodied in any hill of exceptions,—that is, no bill of exceptions, shows that the court refused to receive proof on this issue. - But we-take it that the statute authorizing the judge to change the venue on his own motion leaves this matter entirely within the discretion of the-judge, and is not a matter to he controverted hy evidence. Of course, if a clear case of oppression prejudicial to the rights of appellant was-presented by affidavits, or proof offered setting up this character of case, and a proper hill of exceptions was reserved to the action of the court, we are not prepared to say that this court would not revise an. improper and oppressive action of the lower court. As was said in Bohannon’s Case, 14 Texas Criminal Appeals, 271: “The discretion conferred upon district judges by the article in question is not restricted or controlled hy article 618, and whether such discretionary authority is a dangerous power is not a question for judicial determination. Ho instance of its abuse has ever been made manifest.” The exercise of this power to change the venue from Gonzales to Hays County was as much authorized by article 613 as the original change of venue, and what we have said heretofore relates as well to the latter change: as to the former.
It is not necessary to discuss the objection to the verdict of the jury on the ground that “penitentiary” is spelled in the verdict as follows: “peintenti’áry.”' See McGee v. State, 39 Texas Crim. Rep., 190.
Appéllant contends that the evidence discloses that this was a mur-'der by mob violence. In that connection he insists that the Act of the -Twenty-fifth Legislature (General Laws, Special Session, Twenty-fifth
Legislature, page 40) carves out and defines a distinct offense, to wit, murder by mob violence; and that all prosecutions for said offense, as provided by the first section of said act, can not be commenced and prosecuted in the county where such offense may have been committed, but must be commenced and prosecuted in some other county; that the act, by its express terms, repeals all acts in conflict therewith, and contains no saving clause with reference to prosecutions existing at the time it went into effect. It is accordingly insisted that it applies to this prosecution, which was commenced in the county of De Witt, where the alleged offense was committed. He further contends that the act is not unconstitutional on account of its caption. We concede the constitutionality of the act in question, so far as its caption is concerned,—that is, that “An act to define and punish murder by mob violence ; to fix the venue and regulate proceedings in such cases; and to provide for the suspension and removal of sheriffs,” etc., “who permit it, and fix the venue and regulate proceedings in such cases,”—is not unconstitutional as embracing more than one subject. See Fahey v. State, 27 Texas Crim. App., 146; Albrecht v. State, 8 Texas Crim. App., 216. We do not believe that the object of the act in question was to create a new offense of murder. For a mob to execute a person was formerly murder under our statutes defining that offense, and it is none the less so under the new act. By reference to the act itself, an analysis of sections 1 and 2 will show that it was not the intention of the lawmakers to create a new offense, but merely to give venue to a certain character of murder, to wit, murder by mob violence. This sort of murder is punishable the same as murder formerly was under our statutes, to wit, death or confinement in the penitentiary for life, or according to the degree of murder. The indictment must set out an accusation of murder, and the jury must find the degree of murder, in order to mete out the punishment. This is further manifest by the last clause of section 1 of the statute, which leaves the law of manslaughter unaffected; that is, we take it that, although murder be committed by a mob, if the party committing it do so in the heat of passion, superinduced by adequate cause, as defined by law, such person may be convicted, under the indictment, of only manslaughter. The second section of the law in question provides that prosecutions for murder under this act may be commenced and carried on in any county in the judicial district in which the offense is committed, except the county of the offense, etc. The indictment, as we understand it, must charge a murder, and then charge that it was done under circumstances to constitute it a murder by mob violence, in order to be a good indictment; and when an indictment is drawn in such case, according to the terms of the statute, if it is presented in the county where the offense was committed, it will be dismissed for want of jurisdiction. If a homicide is committed in a county under circumstances which constitute it murder by mob violence, and a party is indicted for murder merely, without the recitations constituting it murder by mob violence, yet, if it
is shown in proof that the homicide was committed under circumstances to constitute it murder by mob violence, the prosecution equally can not be maintained, but must be begun in the proper county. So we take it that the aim and purpose of the statute were not to create a new offense, but to give venue to cases of murder committed under certain circumstances to other counties than the one where such homicide was committed.
This brings us to the question, what is murder by mob violence ? that is, what did the Legislature mean by “mob violence,” and what character or kind of murder did they intend should not be prosecuted in the county where it was committed, but in some other county ? This matter was somewhat discussed in Alexander v. State, 40 Texas Criminal Beports, 395. The exact point decided in that case was that, where two or more persons, out of some private grudge, conspire to kill another, and in pursuance of such purpose do kill him, that it is not a murder by mob violence, as contemplated by the statute of 1897. But we therein indicated that the térms of said statute on mob violence, as construed, were intended to include only cases. in which a mob should take from the custody of some officer one accused of crime, or possibly one charged with crime, or who had committed a crime, though not under arrest, and execute him by violence. In discussing our views restricting the act in question within such bounds, we referred to the history of the times which superinduced the act, and we also appealed to the message of the Governor which accompanied the act. We have since followed the act through the journals in all its details to its final consummation as the completed will of the Legislature, and we are constrained to change our views as heretofore expressed. We take it to be a rule of construction in the interpretation of laws, where the statute is ambiguous, or susceptible of several different constructions, it is competent for the courts to study the history of the bill in its progress through the Legislature by appealing to the legislative journals. Black, Interp. Laws, sec. 91; Endl. Interp. Stats., see. 31. The act in question originated in the house. The Governor sent a special message to the house, accompanying the same with a prepared bill on the subject. Said bill was reported favorably by the committee. The first section thereof related to rapes. This was subsequently stricken out, and the sections of the bill were rearranged, the second section becoming the first section. Said section is as follows: “Every person with sound memory and discretion, who shall kill any reasonable creature in being in this State, or participte in such killing, or aid in any manner therein, when the , person so killed is accused of crime, or is in the custody of the officers of the law, or is taken therefrom by violence, shall be deemed guilty of murder by mob violence,” etc. This bill, with' this provision, passed the house,, and went to the senate. It was reported favorably to that body by the committee. When it came before the senate, it was amended by the following substitute for section 1, to wit: ' “Section 1. Whenever two or more persons shall combine
together for the purpose of mob violence, and in pursuance of such combination shall unlawfully and willfully take the life of any reasonable creature in being, by such violence, such person shall be deemed guilty of murder by mob violence, and upon conviction thereof, shall be punished,” etc. Senate Journal, 25th Leg., Spec. Sess., pp. 119, 120. Two attempts were subsequently made in the senate to amend said section by confining the operation of the act to cases where the person killed is accused' of crime, or is in the custody of the officers of the law; but these amendments were defeated. Id., pp. 120, 121. So it will be seen that the senate distinctly repudiated that provision of the house bill which sought to confine the operation of the act to cases where a mob executed some person charged with crime, or in custody of the officers of the law under a charge of crime. The bill, as thus amended, passed the senate, and was sent back to the house, by which body, in its amended shape, it was passed, received the Governor’s approval, and became a law. So it would seem that we are driven to the irresistible conclusion that the Legislature not only did not intend to confine the acts of mob violence to the execution by mobs of persons accused of crimes, or to the rescuing of persons accused of. crime from officers and their execution, but intended to give the act in its operation a greater latitude; and we understand it to be insisted that the act in question embraces every case of murder by mob violence, and that every murder committed by two or more persons, who have combined together for the purpose of mob violence, and in pursuance of such purpose shall willfully take the life of some other person, that every such case can no longer be prosecuted in the county where it occurred, but must be prosecuted in some one of the counties named. We are thus confronted with the question, what did the Legislature mean when it used the term “murder by mob violence ?” If it intended to change our law in respect to venue in murder cases, and to authorize the prosecution in such cases where two or more persons combine together beforehand to kill a person, or do some serious bodily violence the natural consequence of which would likely produce death, and in pursuance of such purpose do kill him, to be carried on in some other county than the county of the offense, then it would work a radical change in our law, and would be productive of a great deal of confusion. Still, if this is the plain reading of the enactment, we understand it to be our duty in administering the law to carry out the legislative intent' no matter what complications might arise. Suth. on Stat. Const., secs. 321, 324; Blank, Interp. Laws, p. 105; Endl., Interp. Stats., sec. 266. On the other hand, a statute must be capable of intelligible construction and interpretation, otherwise it will be inoperative and void. “The court must use every authorized means to ascertain and give it ah intelligible meaning; but if, after such effort, it is found to be impossible to solve the doubt and dispel the obscurity, and if no judicial certainty can be settled upon as to the meaning, the court is not at liberty to explain or make one. The court may not allow conjectural interpretation to usurp the place of judicial
exposition. There must he a competent and efficient expression of the legislative will. * * * If the terms in which a statute is couched be so vague as to convey no definite meaning to those whose duty it is to execute it, either ministerially or judicially, it is necessarily inoperative. The law must remain as it was, unless that which professes to change it be itself intelligible.” Black, Interp. Laws, p. 75, sec. 36. In consonance with these general views as to the interpretation of statutes, our Constitution provides that every indictment must state the nature of the accusation against a defendant, and it has been held that a statute violative of its provisions is inoperative and void. And again, our Penal Code, article 6, provides: “Whenever it appears that the provision of the penal law is so indefinitely framed or of such doubtful construction that it can not be understood, either from the language in which it is expressed or from some other written law of the State, such penal law shall be regarded as wholly inoperative.” And see also Penal Code, arts. 7, 9.
Now, the question occurs, is this law, authorizing a change of venue in all cases of murder by mob violence, plain and intelligible on its face, or is it framed so indefinitely and in such doubtful language that, judged by itself, or in connection with other laws, it appears ambiguous on its face, and to lead to results never contemplated by the Legislature? The act uses the term “mob violence,” and we have searched the books in vain to find where this combination of words has ever been defined. If we transpose the words and say that mob violence means violence by a mob, and that this in turn means some physical injury by a mob, then we are equally at a loss to differentiate a violence committed by a mob or by a person. The character of injury would be the same, whether committed by one or more persons. If we say that the Legislature intended to take the prosecution away from the home county in every case where two or more persons plan to do another a physical injury, and in pursuance of such purpose willfully kill such person, it would embrace a multitude of cases, evidently never contemplated by that body. Such was not within the evil intended to be provided against. In line with this view, the statute itself is in derogation of common right; for it is traditional with our government, and all our laws with reference to venue are founded upon the idea, that it is the privilege of every citizen to be tried in the vicinage—that is, the county— where the offense was committed, by a jury of his peers. This act, if given the latitude claimed for it, would change this rule in a great number of murder eases; so that, under its operation, in every case of homicide where the proof showed that it was done by two or more persons in pursuance of a plan formed beforehand, the citizen could no longer be prosecuted in his home county, but ex necessitate must be carried to some other county for trial. As stated before, it might be competent for the Legislature to do this; but, before we would be willing to ingraft such a rule of construction, the intention of the lawmaking power intending this result should very clearly appear.
We mention this because, when a law is framed in indefinite or uncertain terms, we are authorized to appeal to all the rules of construction in order to see whether or not it is in such condition as to be enforced. We have seen before that the Legislature refused to pass the law confining the provisions of the act to the murder by mobs of persons accused of crime. They repudiated this view, and substituted another provision. But the question is, where did they intend to stop? They refused to define what “mob violence” should consist of, but left this term of uncertain meaning, for the courts to define, and say to what character of cases this question of venue should apply. The books define a mob as an assemblage of many people acting in a tumultuous and riotous manner, calculated to put good citizens in fear and in danger of their persons and property. In common acceptation it is an unorganized assemblage, a disorderly crowd, etc. See Bap. & L. Law Diet.; 15 Am. and Eng. Enc. of Law, 698. This act, instead of considering a mob as a multitude without organization, makes a mob consist of as few as two persons, and apprehends some sort of organization, for the language of the act is, “if two or more persons combine.” In both, respects the act is a departure from the ordinary definition of a mob. The purpose of the mob, as we have seen, must be to do some injury or violence to another; and if, in pursuance of such purpose, they kill such person, whether they intend such result or not, the act denounces such persons as guilty of murder by mob violence. To illustrate, under this latitude of construction, if two or more persons from any motive combine to merely whip a person, and in pursuance of such whipping they willfully kill such person, though not intending this result, the provisions of the act apply, and the parties can not be prosecuted where it occurred. Under the general provisions of our law, such persons might be guilty only of manslaughter; but the act exempts from its operation the offense of manslaughter. And again, if the parties, or some of them, ■ combine together to kill some other on account of an insult to a female relative, and in pursuance thereof take the life of such person, the persons actuated by such motive, under our statutes, might be guilty of only manslaughter, and, being exempted from the provisions of the act, must be prosecuted in the home county, and not in one of the other counties named. So we see that in giving effect to the provisions of said act, with this latitude of construction, we are met with difficulties and complications. If the act is held to apply to every homicide committed by two or more persons in pursuance of some previous combination, then the venue of every such case is no longer in the home county, but the prosecution must be begun and maintained in some of the adjoining counties named. If, on the trial, proof of combination or conspiracy should fail, then the prosecution in that county can not be maintained. Indeed, the question of venue would ramify our whole law of homicide, and produce inextricable confusion. While, as we have seen, the Legislature refused to restrict the operation of the act to the killing
of a person in the hands of an officer, or accused of crime, and failed to place any other limitation on the act, yet we can not believe that they intended to give it the scope claimed for it. As we have seen, the •act is not complete within itself, but we are required to appeal to another law, to wit, the law of murder, in order to explain and give it force; but the law of murder furnishes no light as to what the Legislature intended by mob violence, and we appeal to all other laws on our statute hooks in vain to ascertain what the Legislature meant by the term “mob violence.” To hold that the act was intended to embrace every killing by two or more persons in pursuance of a previously formed design to kill, or to inflict some injury which resulted in killing, would lead to grave results, evidently never intended by the Legislature, calculated to produce complications and confusions, and which, while remedying no evil, would destroy rights, and create vexations and oppressions. The effect would be, not only to harass the citizen by requiring him to be prosecuted in some other county than where the offense was committed, in a great number of cases evidently never contemplated by the Legislature, hut would impair the efficiency of the law and the administration of justice in the courts, if we gave it such latitude of construction as is here claimed. As presented, we believe that the act in question is so indefinitely framed, and is of such doubtful construction, that it can not be understood, either from the language in which it is expressed or from any written law of this State. We have given this question much thought and study, and we confess to being unable to solve the difficulty, and to determine what the Legislature really meant by the term “mob violence,” or what character of cases they intended the act should embrace. It is so uncertain in its terms as to escape intelligible construction, and we therefore declare it inoperative and void. Now, if this be a correct interpretation of the law, it settles this case, and it is not necessary for us to discuss whether or not, if the act was operative, it would be retroactive, and render nugatory all prosecutions against mobs for murder begun before the passage of the act in question. There being no error in the record, the judgment is affirmed.
[Note.—Appellant’s motion for a rehearing was overruled without a written opinion.—Reporter.]
Affirmed,