Cotton v. State

32 Tex. 614

• Court: Texas Supreme Court
• Decided: July 1, 1870
• Status: Published

Opinion

Lindsay, J.

The indictment in this case ivas returned by the grand jury in the Criminal Court for Galveston county, at its. March term (A. D. 1869). It was founded upon an accusation against -the appellant for the murder of John B. Lockman, on the eleventh day of January, in the year of our Lord eighteen hundred and sixty-nine, in the county of Galveston and State-of Texas. Upon the trial in the Criminal Court, the accused was found guilty of murder in the first degree. A motion was made by the convict for a new trial, which was overruled by the court. From this ruling of the court, and the final judgment rendered, this appeal has been taken, and the cause is now before this court for revision upon the assignment of errors, found in the transcript of the record.

The errors assigned in the record are nine in number, and are substantially and briefly: 1. The refusal of the court to change the venue. 2. Refusal to grant a continuance. 3. The overruling the motion for a new trial. 4. In the charge to the jury. 5. That the jury was mislead by the charge. 6. In receiving other testimony than the affidavits of the applicant, and of two credible persons on the application for a change of venue. 7. The overruling the objection to the introduction of other -witnesses on the consideration of the application. 8. The refusal to allow the applicant to call witness for witness, in determining the justness of the application. And 9. In compelling the accused to challenge peremptorily a witness, whom he deemed incompetent for cause. These are the various reasons which are relied upon for a reversal of the judgment, and for awarding the convict a new trial.

It is, and ought to be, a principle in the administration of justice in a criminal cause, where the life of a rational and immortal being is the issue in the investigation, that all the-technicalities of the law may be used, and made available if possible, in its protection and defense, as far as is allowable by positive law. It is a humane principle, not inconsistent with the Criminal Code of the State, and flows from the same fountain in which our criminal law itself has its origin—the common law.

As, by the law, and under its forms, guilt is to be punished; so, by the law, and under its forms, innocence is the more certainly shielded and protected. The strict observance of the rules of law, in all their details, is a high manifestation of civilization. Their disregard always points out a people still in the eclipse of barbarism. Hence, it is necessary to give all due consideration to even the technicalities of the law whenever the life of a fellow-mortal is suspended upon the issues between truth and falsehood, to be determined by judicial inquiry, in mere human tribunals. The full benefit of every technical objection, therefore, which is allowed by positive law, should be extended to the prisoner in the revisory action of this final tribunal to enable him to make manifest, if it be possible, by a re-investigation of his case, his innocence of the crime with which he stands indicted. This is a part of the humanity of the law, which, it is hoped, will never be disregarded by this court, unless imperiously controlled by an inflexible mandate of the written law. It is what is meant by law, administered in mercy. It is not to neglect and disregard the technical requirements of law in administration, but to insist upon a rigid observance of its rules in enforcing its sanctions. And as the State exacts strict obedience to its penal laws, so ought the State, in the prosecution of those who infract them, strictly to observe the rules which she has prescribed to ascertain and punish the guilty violators of her laws. This is but a canon of impartial justice, which States, as well as individuals, must recognize, and ought always to act upon.

Among the nine errors assigned as having been committed by the court in the progress of the trial, there are only three, the first, second and fourth, (the denial of the change of venue, the refusal to grant a continuance, and the alleged error in the charge of the court,) which it will be necessary for this court to settle in this adjudication, as all the rest are incidentally involved in their determination.

1. Did the court err in denying the change of venue, as a matter of right to the accused, upon his [application, for the alleged causes set forth in the statute ? (See Paschal’s Digest, Art. 2994.) The proper solution of this question is dependent upon the true construction of that article, (2994,) which this court is now called upon, for the first time, to give. A similar provision to the one under consideration was passed by the Congress of the Republic, on the 14th of January, 1841, providing for a change of venue, in both civil and criminal causes, and which was acted upon by the courts, till it was supplanted by legislation on the subject, under the constitution of 1845, in the third section of the schedule of which provision was made for its abrogation by its actual repeal or alteration by the Legislature. By the authority given in the constitution of 1845, the Legislature had enacted, that “ the District Courts may order a change of venue for the trial of any suit, civil or •criminal, under the rules and regulations prescribed by law.” But the Legislature, not having established any rule or regulation, except in the case of the disqualification of the judge presiding, it seems that the District Courts continued to act under the law of the Republic, in civil cases at least, up to the passage of the act under review. That act varied from the present, in requiring three disinterested witnesses to the supporting oath of the application. It left the determination of the sufficiency of the evidence to the presiding judge. In adjudicating upon that act, in the case of Salinas v. Still-man, 25 Texas, judicial discretion in that case being the real issue of law presented, this court affirmed the exercise of judicial discretion, and did not attempt to control it. It was the only real question at issue in the case. All action in changes of venue, both civil and criminal, were taken by the courts under the law of the Republic, until the adoption of the Criminal Code, on the 1st of February, 1857, in which is the Art. 2994, Paschal’s Dig., and reads as follows: “A change of venue may be granted on the written application of the defendant, supported by his own affidavit, and the affidavit of at least two credible persons, residents of the county where the prosecution is instituted, for either of the following causes : 1. That there exists, in the county where the prosecution is commenced, so great a prejudice against him that he can not obtain a fair and impartial trial. 2. That there is a dangerous combination against him, instigated by influential persons, by reason of which he can not expect a fair trial.” This provision of law was not compulsively enacted. The constitution of 1845, in Art. 7, sec. 14, authorized the Legislature to provide for a change of venue in criminal as well as civil cases.

And although the language of the. constitution is mandatory, saying that the Legislature “shall provide for a change of venue,” it is at last only permissive and admonitory. For, by what sanctions can the duty be enforced ? It is left to the will of the Legislature, who are chosen by the people; and if the people, through their representatives, desire no such change, how can it be claimed as a right ? The change of venue is not a right to be claimed by the citizen, but it is a mere incident of the civil institutions of a country, and is a grant of the aggregated mass of the population, in its discretion, with whatever limitations it may choose to prescribe, in the regulation of its civil polity, to the individual citizen; and can only be enjoyed upon the terms upon which the grant is made. The term right is too often used in a vague and indefinite sense. It must not be supposed that there is a constitutional right to a change of venue in the citizen. The right of trial by jury is a constitutional right. But the right to a change of venue is a mere legal right, and can be claimed only upon the terms prescribed in the law, and under all the qualifications which are rationally deducible from it, by a common-sense interpretation of the letter and spirit of the law. In interpreting this law, all its parts must be made effective. If it be true that the affidavit of the defendant, with the supporting affidavit of two resident credible persons in the county, where the prosecution is instituted, affirming the cause, or causes set forth in the statute, is conclusive upon the district judge, what becomes of the judgment of the court upon the truth and sufficiency—not of the application—but of the causes alleged and relied upon in the application ? If that judgment is exercised by the court, what method can be improvised by an appellate court to remedy the casus omissus in the law, in not providing the means of testing the correctness or incorrectness of the judicial opinion of the court below 1 This court would be greatly at fault to discover any method of satisfying its own mind of the truth and sufficiency of the cause or causes which might be set out in the application, unless it could be placed in the precise condition of the district judge.

By the act of the 22d June, 1846, and the then existing law of the Republic, it -was left entirely to the discretion of the District Courts to determine both the causes and the methods of the change. It was a discretion which this court has no right to undertake to control.

In Art. 2994 the grounds or causes which may be assigned for a change of venue, are defined in the statute. If they exist the party is entitled by law to a change. The great prejudice of the community, or a combination of influential persons, against the accused, are legal and sufficient causes for the change. The allegation of both or either of these causes by the affidavit of the party, supported by the affidavit of two credible persons in the county, warrants the accused in submitting' his application to the consideration of the court. But this mere submission of it does not conclude the application and entitle the party to the change, simply because he has complied with the statute in the assignment of the causes and in the method of its presentation. When all .this is ■done, something more is necessary. The court is required to judge of the truth and sufficiency of the causes. How this judgment is to be exercised, the law does not point out. Hence, the judge is not circumscribed by a legal discretion. Over a legal discretion this court would be entitled to exercise a supervision. If it were the mere application about which the judge was required to exercise his discretion, and the application was made in strict conformity with the statute, yet, should the judge absolutely refuse to hear and consider it, he would then be guilty of an abuse of his legal discretion, and this court would be authorized to correct such an abuse of it. By this statute, the district judge is made the sole and irresponsible arbiter of the sufficiency or insufficiency, the truth or falsehood, of the alleged causes for a change of venue. The law, too, prescribes no methods by which he shall enlighten his understanding about the truth or falsehood of the causes assigned. An investigation may or may not be necessary to satisfy his mind of the credibility of the supporting affiants. If he personally knows them to be unworthy of credit upon oath, he needs no further evidence of the insufficiency of the cause or causes. If he has actual personal knowledge of the temper and tone of the people of the county towards the accused, other proof is needless of the falsehood of the affidavit. He might refuse to grant the application, however regularly made, and however strictly in conformity with the requirements of the statute, without any proof whatever. And how could this comt ascertain by any law, that he had judged wrongly ? Tet, the law says he must judge of the truth and sufficiency of the causes. If, however, he is in doubt about the truth and sufficiency of the causes, upon the presentation of the application, lie may resort to whatever methods of enlightenment lie-may deem most expedient to enable him, honestly and faithfully, to discharge his duty to the State and to the accused,, and to secure a fair and impartial trial to the prisoner, untrammeled by any positive law, and solely under the guidance of his own personal discretion. This law does not undertake to-hedge in the discretion of the judge by any legal and technical rules, but leaves him, from the necessity of the case, to his own-, uncontrolled judgment, and amenable only to public opinion-for any wanton or tyrannical abuse of it. It is, like many other-acts of judicial administration, left necessarily to the sole discretion of the judge, and can :iot be reviewed and corrected by this court. Taking the words of the act in their plain and obvious meaning, as the Criminal Code enjoins, the court is. satisfied this is the true and correct interpretation of this provision of the law.

The question' of continuance, also, involves matter of discretion in the court. But this is a discretion which is fixed and circumscribed by well defined rules. In this case it is a legal discretion. When those rules are transcended, or violatedr there is something which may be made tangible and appreciable to the understanding; and this court is endowed with authority to modify, or correct, the resultant wrong or injury. If there was error in refusing to grant a continuance, the party,, by failing to take a bill of exceptions, has not placed himself in a position to avail himself, in law, of the advantage of such an error. It is needless to quote the decisions of this court in-support of this rule. The current is uniform in civil causes ;■ and when a party does not except to the rulings of the court,, if there be error, it is considered as waived. So, by the Criminal Code, a party may waive all errors, except a trial by jury.. If, however, in a criminal case, and especially in a capital felony, enough should appear in the record to evince a case of doubtful guilt, this rule ought not, by any means, to be held, inflexible, at the peril of innocence.

It is urged by the very able and ingenious counsel for the-prisoner, that the charge of the court was calculated to mislead,, and did mislead the jury; because a clear and satisfactory distinction was not drawn in the charge between murder in the-first degree and murder in the second degree. This is one of those difficult tasks which this court, as yet, has never per- ■ formed to its own satisfaction. It certainly is a labor of no* small difficulty.

There are three grades of felonious homicide defined by the* Criminal Code: murder in the first degree, murder in the* second degree, and manslaughter. Each of these offenses has a separate and different penalty annexed to it. Every felonious homicide that is committed, is either manslaughter or murder; but whether murder of the first or of the second degree is the difficult and embarrassing question in the practical administration of the criminal law. If the homicide is committed with express malice, it is murder in the first degree. If with merely implied malice, it is murder in the second degree. The distinction between manslaughter and murder, whether of the one degree or of the other, is obvious enough. But the precise line of demarkation between murder of the first and murder of the second degree, as developed by acts, manifested in the evidence, seems in many cases to elude the sagacity and penetration of most jurists as well as lawyers. Under our system, the difficulty of detection, in some of the various phases of criminal homicide, stands confessed. In all cases of murder, malice is a necessary ingredient. Malice is but a wicked and evil state, or frame of mind, towards another; a mental emotion, aroused and awakened by some motive of real or imagined wrong; or of some personal benefit, or advantage to be gained, fostered and cherished in moments of coolness, sedateness and deliberation, and which prompts to action, and seeks its gratification in the destruction of its intended victim, whenever a favorable-conjuncture of circumstances may present itself. It is likewise to be implied in all cases of homicide, and its existence is always presumed, till the facts, developed by evidence, show that the act of killing was in sudden passion, from an ■adequate cause—which makes it the offense of manslaughter; or, if the proof evinces unmistakably that there was no express malice actuating the conduct of the slayer, but that he, nevertheless, slew his victim without an adequate cause, it can not graduate the offense to manslaughter, but must leave it intermediate between manslaughter and murder in the first degree. The slaying under such circumstances, without express malice, being without adequate cause, will constitute an offense denominated in the Code murder in the second degree, which is one of the cases of murder upon implied malice, though no malice be actually detected by the proof upon the trial. Such a state of case constitutes murder in the second degree, while there are various other states of fact, which come within the same category. It is needless to advert to the various possible phases of this offense, as the purpose is to settle the principle which is involved in this case. Testing, therefore, the charge of the court by the. principle enunciated in the view here taken, the court can discover no such error in the charge as could operate on the minds of the jury to the prejudice of the prisoner.

The other errors assigned are all embraced by the principles relied upon and the reasoning used, in disposing of those discussed, except the ruling of the court as to the competency of a juror, which the accused was compelled to challenge peremptorily, and also the exception to the oath. The court can not regard the objection to the ruling of the court upon the competency of the juror, as a valid one, unless the accused had been thereby compelled to accept an objectionable juror, after the exhaustion of his right of challenge, if or does the court require the force of the obligation in regard to the oath. In the minutes of the court, it appears in the recital of the historical progress of the investigation, that the jury was duly sworn, and in making that recital the record simply states the object and purpose of their being sworn, which was the real object and purpose, as stated, for which they were sworn, and was not intended to set out the oath in liceo verla. If or was it necessary to set forth the oath in the record of the trial. The purpose of swearing them was correctly recited: “ well and truly to try the issue between the State of Texas and the defendant, and a true verdict to render in accordance with the law and the evidence.” It is presumed the truth was recited in the record.

By the aid of the lights afforded by the arguments of the attorney general and the learned counsel of the prisoner, which were conducted with unusual and signal ability on both ■sides, the court, duly impressed with the solemn responsibility of its position, in having even an official agency in settling, in any degree, the worldly destiny of a fellow mortal, feels some assurance of confidence, however, that in the settlement of the points raised in the record, correct conclusions have been arrived at. Under a conscientious conviction of the truth and correctness of the principles of law relied upon, and of a sense of obligation to society and to good government, The court is ■constrained to withhold the new trial sought by this appeal.

The judgment of the Criminal Court of Galveston county is therefore affirmed, and remanded for the sentence of the law to be pronounced and executed.

Affirmed.

In full consultation this application has been ■carefully considered. From the gravity and the solemnity of the interests involved, it was not hastily, and without due reflection, disposed of. The zealous argument of counsel, and the urgent appeal to the court to reconsider the law applicable to the facts of the case, have prompted a calm and deliberate re-examination of the grounds upon which the decision of the court was based; and after the most dispassionate scrutiny of the law and the facts of the case, and of the conclusions arrived at in the opinion already delivered, no such error is found as would warrant the court in granting the rehearing which is ■asked. It is therefore refused.

Rehearing refused.