Cordova v. State

6 Tex. Ct. App. 207

Opinion

Ector, P. J.

The defendant in this case, José Cordova, •Jr., was jointly indicted with José Cordova, Sr., Henriqne Diaz, and Merced Saucedo, alias Morales, alias Cordova, on the twentieth day of October, 1877, for the murder of Robert Trimble, on the seventh day of July, 1877. He was tried separately, at the December term, 1878, of the court, convicted of murder in the first degree, and has appealed the case to this court.

Many objections have been urged against the rulings of the court on the trial, which are properly presented in bills ■of exception and assignments of error. Counsel for defendant in the court below contested every point that •could possibly arise during the trial, and, judging from the record before us, did their whole duty in defence of their client.

On the trial in the District Court, the defendant filed a motion to quash the indictment, for the following reasons, to wit: —

“1. Because the indictment herein was not found by a grand jury empanelled according to law, at a term of the District Court of Bexar County, in this: that at the time the grand jury were empanelled this defendant was confined in the county jail of Bexar County, and was not produced in open court to challenge any of the grand jurors so empanelled, nor was he granted the privilege of exercising the right to challenge the grand jurors so empanelled, as is authorized under the law.

“2. Because it was not presented in a court having jurisdiction of the oifence therein charged, because this is not a legal term of the District Court of Bexar County, the Constitution having provided for only two terms of the court in this county, not corresponding with the time this court is being held, and there has not been any lawful legislative ■change of said constitutional time.”

We think the court properly overruled the motion to ■quash the indictment. The motion fails to state any cause ■of challenge, either to the array or to any member of the grand jury, if he had been present in court at the time the jury was empanelled; or that defendant was deprived of any legal right. The exact question raised in the first ground in the motion to quash has been passed upon by this court in the case of Thomason v. The State, 2 Texas Ct. App. 550.

The second ground in the motion raises the question of the constitutionality of the act of May 30, 1876, which prescribes the times of holding the District Courts in the 'Twenty-second Judicial District, Bexar being one of the •counties composing said district.

An ordinance passed by the Convention of 1875, which framed our present State Constitution, fixed the terms of holding the District Court in the county of Bexar to the fourth Mondays in April and October, until otherwise provided by law. Art. 5, sect. 7, of the Constitution reads as follows : “ The State shall be divided into twenty-six judical districts, which may be increased or diminished by the Legislature. For each district, there shall be elected by the qualified voters thereof, at a general election for members of the Legislature, a judge, who shall be at least twenty-five years of age, shall be a citizen of the United States, shall have been a practising attorney or a judge of a court of this State for a period of four years, and shall have resided in the district in which he is elected for two years next before his election; * * * and shall hold the regular term of court at one place in each county twice in each year, in such manner as may be prescribed by law. The Legislature shall have power, by general act, to authorize the holding of special terms, when necessary, and to provide for holding more than two terms of the court in any county, for the despatch of business.” * * * [The italics are our own.]

Art. 3, sect. 57, of the Constitution is as follows: “ No local or special law shall be passed, unless notice of the intention to apply therefor shall have been published in the locality where the matter or thing to be affected may be situated, which notice shall state the contemplated law, and shall be published at least thirty days prior to the introduction into the Legislature of such bill, and in the manner to be provided by law. The evidence of such notice having been published shall be exhibited in the Legislature before such act shall be passed.”

The defendant claims that the act of the Legislature which gives five terms of the District Court to Bexar County is in contravention of the provisions of the Constitution, and is therefore null and void. All acts of the Legislature must be sustained by the courts, unless they are clearly and undoubtedly repugnant to the Constitution. The judiciary look to the acts of the Legislature with just respect, and reconciles them with the Constitution, and sustains them, if possible. In expounding a constitutional provision, such construction should be employed as will prevent any clause, sentence, or word from being superfluous, void, or insignificant. The thing to be sought is the thought expressed. Contemporaneous legislative construction is always considered of force. The Constitution, in express terms, having conferred upon the Legislature the power, by general law, to provide for more than two terms of the District Court in any county, the Legislature, in passing the act under consideration, has, we believe, kept within its constitutional limits.

The act which provides for five terms of the District Court of Bexar County is not a “ local ” or “ special” law, in the sense in which these terms are used in the Constitution. Said act is on a general subject, —the regulation of the courts, — which cannot be said to affect the welfare and interest of that district alone.

The Supreme Court of Maryland hold that, to make a statute a public law of general obligation, it is not necessary it should be equally applicable to all parts of the State ; all that is required is, that it shall apply equally to all persons within the territorial limits described in the act. The State v. County Commissioners of Baltimore, 29 Md. 516. See also Davis v. The State, 2 Texas Ct. App. 425. And the Supreme Court of New York, in the case of Williams v. The People, 24 N. Y. 405, in speaking of an act entitled “ An act in relation to police courts in the City of New York,”—which, among other provisions, provided that a larceny from the person of another of property less in value than $25 might be punished as for grand larceny, — say: “It has, no doubt, features which savor of locality, for it punishes a well-known common-law offence more severely if committed under peculiar circumstances, within the limits of that city, than if committed elsewhere. But it prescribes the rule of conduct for all persons, whether residents of the city or any other part of the State, and its increased penalties are intended to protect residents of other localities equally with inhabitants of the city. * * * I cannot think that a statute having such consequences is to be classed with special provisions making appropriations for particular roads, public buildings, or the like, Situated in particular local divisions.”

And in the case of Conner v. The Mayor of New York, 1 Seld. 297, the question was, whether a statute passed December 10, 1847, in relation to the fees and compensation of certain officers in the city and county of New York, was void. The appellant claimed that it was void because passed in violation of art. 3, sect. 16, of the Constitution, which provided that ‘ ‘ no private or local bill * * * shall embrace more than one subject, and that shall be expressed in the title.” We make the following extract from the opinion of the Court of Appeals of the State of New York in the case: “Is this act private, or local, in the sense of the constitutional provision under consideration? In my opinion, it is neither; but, being satisfied, for the reasons above given, that it embraces but one subject, I will only say that regulating the amount and manner of paying the officers, or any given number of the officers of a county of this State, for their official services, when such services are rendered in, and form part of, the administration and execution of the laws of this State, and affect equally the whole citizens thereof who come Avithin their range, can neither be private nor local in the view contemplated by the Constitution.”

The next question presented relates to the ruling of the court on defendant’s motion to quash the special venirefacias drawn in this case. The defendant moved to quash the special venire facias: “1. Because the jurors on said venire facias were not summoned according to laAV. 2. Because the said venire was not issued under a legal seal of the District Court of Bexar County, the legal seal containing the words, ‘ District Court of Bexar County,’ and the seal under which said venire was issued contains the words, ‘ District Court, Bexar County.’ 3. The defendant was not in court when said venire was drawn. 4. Because the copy of jurors purporting to be the venire draAvn in this cause does not show, from the certificate of'the clerk, that said jurors were drawn according to law.”

As appears from the transcript before us, the clerk issued a writ of special venire facias for sixty jurors, to be summoned by the sheriff in this case. The writ of special venire facias for sixty jurors, giving their names, to be summoned by the sheriff' as special jurors in this case, recites that they were selected according to laAV, and the return of the sheriff thereon states that said writ was executed by summoning forty-three of the persons named therein in person or by written notice, whose names are given; and that he had delivered a true copy of the list of those summoned to the defendant.

It is difficult to perceive how defendant could have been prejudiced by the manner in which the jurors were summoned. Under our present jury system, whenever a special venire in a capital case is ordered, the names of all the persons selected by the jury-commissioners to do jury service for the term at which such venire is required are placed upon tickets of similar size and color of paper, and the tickets are placed in a box, which shall be well shaken up, and from this box the clerk, in the-presence of the judge, in open court, shall draw the number of names required for the special venire, and the names of the persons so drawn shall be attached to the writ of special venire facias, and the persons so-named shall be summoned by the sheriff, or other lawful officer, by virtue thereof. If the persons summoned on thevenire were those drawn in the manner prescribed from the list of petit jurors, the officer summoning them could not be justly charged as “ acting corruptly, in wilfully summoning persons upon the jury known to be prejudiced against the defendant, with a view to cause him to be convicted.”

The sheriff, or his deputy, may serve those drawn by the-jury-commissioners as petit jurors, by giving personal notice to each of the jurors, or by leaving a written notice at the juror’s place of residence, with a member of his family over-sixteen years old. See sects. 9, 25, chap. 76.

It would be the better practice in all capital cases for the-sheriff, or his deputies, to summon in person all named in the writ, when this can be done.

The second ground in the motion to quash the venire is too technical. The impress of the seal upon the writ of venire facias is a substantial compliance with the requirements of the law. The seal under which the venire was issued, by a proper grammatical construction, may be held to contain all the necessary words required by the statute. Pasc. Dig., art. 1411.

The defendant had no legal right to be in court when the special venire was drawn. This exact question has been decided in the case of Pocket v. The State, 5 Texas Ct. App. 552.

We believe the copy of the writ of special venire facias sufficiently shows, in the absence of any thing to the contrary, that the names of the persons attached to it were drawn according to law.

The ninth assignment is, that the court erred in causing the defendant to be arraigned after the jury had been selected and sworn to try the case. As a question of practice, this court has said that when an arraignment is required, it should precede the commencement of the trial, and the record should so state. But when the record shows that an arraignment was not neglected, but was had at an improper time, as in this case, on that account alone the verdict would not be disturbed. Smith v. The State, 1 Texas Ct. App. 408.

The charge of the court fully and fairly presented the law of the case to the jury. The prosecution relied entirely on circumstantial evidence for a conviction. We make the following extracts from the charge of the court, to wit: —

“In order to warrant a conviction of a crime on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved by competent evidence, beyond a reasonable doubt; all the facts necessary to the conclusion must be consistent with each other, and also must be consistent with the main facts sought to be established. In other words, the circumstances, taken together, must be of a nature to lead the mind with inevitable certainty to a satisfactory conclusion, — one pointing to the accused as the person who engaged in the illegal act, and is guilty of the offence charged.” * * *

‘ ‘ The defendant is presumed to be innocent until his guilt shall be established by proof; and if you have a reasonable doubt of his guilt, you will give him the benefit of the doubt, and acquit him.”

No exceptions were taken to the charge of the court, nor were any additional instructions asked by the defendant.

On the trial of the cause in the court below, on the application of defendant, the witnesses for the State were put under the rule. Subsequently, the State introduced M. B. Garcia, and thereupon defendant objected to said Garcia testifying, assigning as a reason therefor that said Garcia had been in the court-house, and had heard the testimony of John Trimble, which objection was overruled by the court; to which ruling defendant excepted, and tendered his bill of exceptions. The court, before signing the bill of exceptions, makes this explanation: “ The witness Garcia was acting as deputy-sheriff at the time of the trial, and was in court guarding the defendant. He heard only a small portion of the testimony of John Trimble, upon matters foreign to the matters within his (Garcia’s) knowledge; and as soon as the witness Garcia was discovered by the court, he was put under the rule, and there remained during the trial. There was, in fact, no violation of the rule. The presence of the witness in the court was an oversight for which no one is responsible, and' no one was or could be prejudiced or harmed thereby.”

The enforcement of the rule against witnesses is committed to the discretion of the judge presiding at the trial; and, in order to authorize a reversal upon a ruling of this character, it must appear that the defendant was injured thereby. The bill of exceptions fails to show this. Ham v. The State, 4 Texas Ct. App. 473, and authorities there cited.

The counsel for the State, on the trial, were allowed to prove by the witness McDaniel, over the objections of the defendant, that he paid the deceased over $200 in money on the morning he left home for San Antonio, which was the day before his death. The evidence in the record shows conclusively that Robert Trimble was murdered on his way home from San Antonio. His dead body was found in Bexar County, with two severe stabs next the heart and a bullet hole through his clothing. The evidence of McDaniel, which was objected to, was admissible to show a motive for the murder.

The deceased left his home in Medina County on the 6th of July, 1877, for San Antonio, in a wagon, driving two mules, with a load of corn, intending to bring back family supplies. On the morning after the murder, his mules were seen in Medina County, near the home of the deceased. On the trial of the cause, the court permitted the State, over the objections of defendant, to prove that, on the night Robert Trimble is alleged to have been killed, there was a dance and music at the house of defendant’s father, and that there was a wagon standing in the yard of defendant’s father, without first proving that defendant was there, and that the wagon was the property of the deceased. Henry Rucker, a witness for the State, testified, among other things, as follows : 661 saw a wagon at the house of old man Cordova, the Sunday night after Trimble was killed. * * * I heard music and dancing at the house of old man Cordova, and got up at twelve or one o’clock, and went out to look. From a light in the house, I could see a wagon near the house. Next morning all were gone from the house; the wagon also. There was nothing left in the house. There was no wagon at the house as I went home, at nine or ten o’clock that evening. The wagon I saw was a two-horse wagon.” The State proved that defendant was seen on the 12th of July, 1877, three miles below the town of Uvalde, Uvalde County. There were then with him four other persons, — an old man and an old woman, who were his father and mother, and two boys. They were travelling on the old Fort Inge Road, which is not a public road, though it is sometimes travelled. The defendant, the old man, and the old woman were in a wagon, which, though somewhat defaced, was proved to be the wagon Trimble was driving at the time he was killed. They were en route for Mexico. Defendant and those travelling with him were arrested by a party of Rangers, who were on the lookout for them. Signs of blood were seen about the wagon. After defendant and his party were arrested, they were started back to the town of Uvalde. Defendant shot two of the Rangers who had him in charge, and made his escape. He was subsequently captured in Mexico. The defendant attempted to prove on the trial that the wagon belonged to him; that he had purchased it a day or two before Trimble was killed. Under the circumstances, as shown from the testimony already before the jury, we think the evidence in regard to the wagon was competent testimony.

The acts of the defendant after his arrest, and while in custody, were properly admitted in evidence. In almost every criminal case, a portion of the evidence laid before the jury consists of the conduct of the accused, either before or after being charged with the offence; presented, not as a part of the res gestee of the criminal act itself, but as indicative of a guilty mind. In weighing the effect of such evidence, Mr. Roscoe says, nothing more than ordinary caution is required. The best rule is for the jury to apply honestly their experience, and draw such inferences as experience indicates in matters of the gravest importance. Roscoe’s Cr. Ev. 17, 19.

Again: it is complained that the court erred in hearing and determining defendant’s motion for a new trial while the defendant was absent in jail, and without a waiver of his presence in court. The judgment-entry on the motion for new trial does not state, in so many words, either that the defendant was present or not present when the motion was heard; it merely recites that he appeared by attorney. The clerk may have deemed it not a matter of sufficient importance to show that defendant was present, or the omission to state that he was present may have been the result of carelessness on the part of the clerk in entering the judgment ; or we might indulge the presumption that the right of defendant to be present when his motion for a new trial was heard had been waived, inasmuch as the law gives an accused the privilege of waiving such right. Gibson v. The State, 3 Texas Ct. App. 437 ; Sweat v. The State, 4 Texas Ct. App. 617.

Other questions were raised by the defendant during the-progress of the trial which it would be, in our judgment, a useless consumption of time to discuss in this opinion. They relate principally to the rulings of the court in admission of evidence.

The defendant has not been represented in this court by counsel. Feeling deeply impressed with the momentous issues involved, we have given the entire record before us a most careful and scrutinizing examination, and we find no error in it which would warrant us to reverse the judgment. When a criminal charge is to be proved on circumstantial evidence alone, the proof ought to be not only consistent with the prisoner’s guilt, but inconsistent with any other reasonable hypothesis under the circumstances and facts, proved. We believe that the verdict and judgment are in accordance with the law and the evidence. The judgment, of the District Court is affirmed.

Affirmed.