Loyd v. State

19 Tex. Ct. App. 137, 1885 Tex. Crim. App. LEXIS 174

Opinion

Hurt, Judge.

At a former day, at the Austin term of this court, to wit, on the 23d day of May, upon motion of the assistant attorney-general, this appeal was dismissed. This motion was based upon the following order and afiidavits:

“ Exhibit A.

“ The State of Texas, To the Sheriff of Mitehell County, Texas:

“ You are hereby commanded to receive into custody and safely keep Arthur Loyd, who has been convicted of murder in the second, degree, and his punishment assessed at forty years’ confinement in the State penitentiary, and him safely keep to await the result of his appeal in this case. Wh. Kennedy,

“ Judge Thirty-second District.”

“ Before me, J. E. Hooper, clerk of the district court of Mitchell county, Texas, this day appeared Wayne Parks, who, being by me duly sworn, deposes and says on oath that the above and foregoing is a true and correct copy of the original order of commitment in the Arthur Loyd case in the sheriff’s office of Mitchell county, Texas. Wayne Parks,

“ Deputy Sheriff of Mitchell County, Texas.

“ Sworn to and subscribed before me May 21, 1885.

[seal.] “ J. E. Hooper, Clerk,

“ District Court Mitchell County.”

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6£ To D. Q. Hill, District Attorney Thirty-second Judicial District of Texas'.

“I, Wayne Parks, deputy sheriff in and for Mitchell county, Texas, respectfully represent that, at the February term of district court of Jones county, Texas, in a certain cause wherein the State of Texas was plaintiff and Arthur Loyd defendant, charged with the crime of murder, the defendant, Arthur Loyd, was convicted of murder of the second degree, and his punishment assessed at forty years’ confinement in the State penitentiary. That, after said conviction and sentence of Arthur Loyd, on said charge of murder at said term of court, the defendant was, by an order of commitment by Wm. Kennedy, district judge of the thirty-second judicial district, a copy of which is hereto attached and marked Exhibit A, placed in the custody of E. 0. Ware, sheriff of Mitchell county, Texas, to be by him safely kept to await the result of the appeal taken by the defendant, Arthur Loyd, to the court of appeals in this case. That heretofore, to wit, on the 3d day of May, 1885, the defendant made his escape from the custody of E. C. Ware, sheriff as aforesaid, while he was so legally held in the county jail of Mitchell county, Texas, to await the result of his appeal as aforesaid, and the defend ant Loyd was recaptured on said 3d day of May, 1885, but did not voluntarily return. Wayne Parks,

“ Deputy Sheriff of Mitchell County.”

“ Before me, J. E. Hooper, clerk of the district court of Mitchell county, Texas, this day personally appeared Wayne Parks, deputy sheriff of Mitchell county, who, being by me duly sworn, deposes and says on oath that the above and foregoing is a true and correct state of facts in the case of Arthur Loyd.

“ Given under my hand and seal of office in Colorado this 21st day of May, 1885.

[seal.] “ J. E. Hooper, Clerk,

“ District Court Mitchell County.”

Appellant submits a motion for rehearing upon the motion to dismiss, insisting that the court erred in sustaining said motion and dismissing his appeal.

Article 845, Code Criminal Procedure, provides that: “In case the defendant, pending an appeal in a felony case, shall make his escape from custody, the jurisdiction of the court of appeals shall no longer attach in the case; and upon the fact of such escape being made to appear, the court shall, on motion of the attorney-general, or attorney representing the State, dismiss the appeal; but the order dismissing the appeal shall be set aside if it shall be made to appear that the accused had voluntarily returned' to the custody of the officer from whom he escaped, within ten days.” Article 846 provides : “ When any such escape of a prisoner occurs, the sheriff who had him in custody shall immediately report the fact, under oath, to the district or county attorney of the county in which the conviction was had, who shall forthwith forward such report to the attorney-general, at the court to which the transcript was sent; and such report shall be sufficient evidence of the fact of such escape to authorize the dismissal of the appeal.”

JSTow it is contended by counsel for appellant that such report of the sheriff will not be sufficient for a dismissal, unless the facts constituting the escape are set forth in the report; that merely to state that the person escaped is simply the sheriff’s conclusion; that the facts must be stated in order that this court may pass upon them and determine whether the prisoner did in fact escape.

We are of the opinion that the facts constituting the escape should be set out in the report of the sheriff, so that this court may inspect the same, and determine whether they, in law, constitute an escape. By the law of this State, from convictions in all felony cases the party convicted has the right to appeal to this court. This is a valuable and a very important right, guarantied by the Constitution as well as by an act of the Legislature; and hence the citizen should not be deprived thereof, unless, upon clear and undoubted proof, it appears that the right has been by him forfeited. No conclusions or impressions of the sheriff, or other officer making the report of the escape, should be indulged. The facts and circumstances constituting the escape should be stated in the report. (Willson’s Cr. Forms, p. 476, Form 950.)

The officer says “ that Arthur Loyd, convicted in Jones county, Texas, in February, 1885, of the murder of E. Price Ogle, was in jail in Mitchell county, Texas, on the 3d day of May, 1885; that on said date he got out of said jail, and was captured about two hundred or three hundred yards therefrom, and returned to and into said jail within fifteen or twenty minutes of the time he got out, as aforesaid.”

The officer from whose custody the defendant is alleged to have escaped, having made a statement of thq facts attending the supposed escape, we will look to these facts, and if, indeed, there was not an escape, his appeal will be reinstated.

Do the facts, therefore, show an escape ? This question leads us into an examination of what constitutes an escape. Mr. Abbott, in his Law Dictionary, in treating of this word, says: “ In its ordinary popular sense the word suggests only the voluntary withdrawal of a prisoner from custody, and this an actual and complete one. The word would only be considered applicable where a person in custody gets free and goes at large. The technical sense includes more than this; wrongful or careless relaxation of imprisonment by the officer in charge is called an escape, even in cases where the prisoner does not go at large. The meaning of the word must be considered in three aspects: as a default in duty by the sheriff or jailer, subjecting him to liability for damages, at the suit of a creditor injured by the escape; as a misconduct, or even offense, by the prisoner or by the officer; and as calling for a pursuit and recaption. Considered in the second and third of these aspects, the word probably has substantially its vernacular meaning. A prisoner does not commit the crime of escaping, nor is authority for a recaption necessary, unless there is a voluntary and complete departure from custody. But in the first mentioned use, which is the one most frequently observed, it has a wider extension.” (Yol. 1, p. 437.)

We are of the opinion that the meaning to be given to the word escape,” in article 845 of the Code of Criminal Procedure, should be in its ordinary and popular, or vernacular, meaning. This view is strengthened by article 10 of the Penal Code, which says: “Words which have their meaning specially defined shall be understood in that sense, though it be contrary to their usual meaning; and all words used in this Code, except where a word, term or phrase is specially defined, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject-matter relative to which they are employed.”

Therefore, to constitute an escape under said article, the prisoner must “ actually and completely ” withdraw himself from custody; that he must “ get free and go at large.”

Now, applying this meaning to the word “escape,” let us look again to the last affidavit of the officer,— that which pretends to give the facts attending the supposed escape, and see if indeed there was an escape.

The facts stated in this second affidavit are quite meager and uncertain. They are that the prisoner got out of jail, and was captured about two hundred or three hundred yards therefrom, and returned to and into said jail within fifteen or twenty minutes of the time he got out, as aforesaid. Now these facts, we think, do not show an escape, as that word is defined above. Nothing beyond an attempt is shown. The officers may have been in hot pursuit, and, by capturing the appellant, prevented him from “ actually and completely withdrawing himself from custody,” and “ getting free and going at large.”

It is also contended by counsel for appellant that, as article 845 gives the prisoner ten days in which to return to custody, a capture before the expiration of the ten days will not deprive the prisoner of his right to have his appeal reinstated; that he has the ten days in which to reflect on his situation, and the consequences, etc., and that though the jurisdiction of the court of appeals may have been divested by the escape, still, if he is in custody before the ten days expire, whether he returns voluntarily or is captured and forced back into custody, the jurisdiction of this court reattaches, and of consequence his appeal, if dismissed, must be reinstated.

We do not think this position is sound. By article 845, if there be an escape the jurisdiction of this court “ no longer attaches in the case.” And in order to bring the case within the jurisdiction of this court,— to reinvest this court with jurisdiction over the case,— a certain thing must absolutely be done by the prisoner. He must voluntarily return to the custody of the officer from whom he escaped; and this voluntary return must be within ten days. For this court’s jurisdiction to attach, having been divested by the escape, the return must not only be within ten days, but such return must be voluntary.

But it is insisted that to dismiss appellant’s appeal upon the ex parte affidavit of the sheriff would be in violation of sections 10 and 19 of the Constitution. These sections of the Constitution certainly have no application to cases after trial and conviction. The accused must have a speedy trial by an impartial jury, etc., and be confronted with the witnesses against him. (Section 10, article 1.)

While it is true that a party convicted of felony has a constitutional right to appeal, and this right is given without a provision to the effect that the Legislature may prescribe regulations by which this right may be enforced (sec. 6, art. Y, Constitution), still we have no doubt that the Legislature has the power to prescribe such regulations, and, if reasonable, they will not be in violation of the Constitution.

But this question is not now before us. In this case appellant has certainly been awarded his right of appeal. How the question is: If pending his appeal he should escape, thereby withdrawing himself from the practical jurisdiction of this court, has the Legislature the right to declare such escape an abandonment of his appeal? We think so. At common law if a party, being in custody for felony, escape, he would be guilty of felony. (Archbold’s Grim. Frac, and Bl., p. 1862.)

Again: let us suppose that the convict, pending his appeal, should escape and remain at large twenty or thirty days; what disposition should be made of his appeal? Must this court pass upon his case during the time of his freedom? Clearly not, for if the judgment be affirmed there would be no prisoner to respond to the mandate.

Should this court wait until his return to custody? How long must it wait? Hntil it suits the prisoner’s convenience? We think that without a statute upon this subject this court would have the right to treat such escape as an abandonment of his appeal, and dismiss the same. Hence, we are of the opinion that article 845, Code of Criminal Brocedure, is not only reasonable but eminently wise.

[Reporter’s Note: The above opinion, upon the appellant’s motion to reinstate the appeal upon the docket, the same having been at a previous term of ‘the court dismissed, was delivered on the 21st day of October, 1885. The opinion upon the merits, which follows, was delivered on a subsequent day of the term,]

Because in this case the facts do not show an escape, the rehearing is granted, the order of this court dismissing this appeal is hereby vacated, and the appeal reinstated.

Ordered accordingly.

[Opinion delivered October 21, 1885.]

Hurt, Judge.

Appellant, Arthur Loyd, stands convicted of the murder of E. Price Ogle, the verdict being for murder of the second degree, with forty years’ confinement in the penitentiary as the punishment, We have given this record and the able brief of counsel for appellant a very careful consideration, and the conclusion reached is that there is but one matter presented in the record which demands discussion.

It appears from bill of exceptions Ho. 2 that the State, over objection, pi’oved by the witness Hamilton that a brown horse was by defendant sold to Olaib. Merchant about the 4th day of April, 1884, and that afterwards one Hewt. Ogle, brother of deceased, came to Merchant’s and claimed the horse as the property of deceased. The confession of defendant that he had sold the horse to Merchant was made one or two days after the homicide. How if the horse sold to Merchant was the same ridden by deceased at the time of the murder, the fact that defendant was in possession of this horse soon after the murder was, under the peculiar circumstances of this case, of the first importance, and though in arrest, if he informed Hamilton of the whereabouts of the horse, and in pursuance of this information the horse was found, this fact would most evidently be admissible. But, to make this confession competent, the horse must be found in pursuance to the information obtained from defendant. We are not to be understood that the fact that defendant sold the horse to Merchant just after the homicide could not be shown, independent of defendants confession. We do not understand counsel for appellant to object to the admissibility of defendant’s confession “that he had sold” the brown horse to Merchant. But his objection is to that part of Hamilton’s evidence in which he is permitted to state “that later one Hewt. Ogle, brother of deceased, came to Merchant’s and claimed the horse as the property of deceased." By these facts the State proved that the horse sold to Merchant soon after the homicide was the property of deceased, thus establishing, under the peculiar circumstances of this case, a very cogent if not conclusive fact against defendant.

The fact that Newt. Ogle claimed the horse as the property of deceased was unquestionably incompetent, being evidently hearsay testimony. But was appellant in the slightest degree injured by this evidence?

Hamilton stated that Newt. Ogle claimed the horse sold by defendant to Merchant as the property of deceased. This was hearsay and inadmissible. But what says Newt. Ogle in reference to the horse? He says: “E. P. Ogle had a horse when I last saw him which I had sold him. It was a brown horse, or a dark bay. The horse was branded on the shoulder with a bar or dash. I traded the horse to E. P. Ogle, I think, in October, 1883. I saw the horse when my brother left on him, and I saw him again in the possession of Mr. C. W. Merchant, in Abilene, in April, 1884, I think on the 16th day. I got the horse from Merchant and have him now afc home.”

Hamilton stated that Newt. Ogle claimed the horse as the property of his brother E. P. Ogle. Newt. Ogle says that he got the horse from Merchant, and that in fact it was the property of his brother E. P. Ogle. All of the possible injury which could have resulted to defendant from the testimony of Hamilton with reference to this matter was eliminated from the case by the direct, positive testimony of Newt. Ogle to the fact that the horse was the property of the deceased. The hearsay testimony of Hamilton could not have added strength to the positive evidence of Newt. Ogle, he (Ogle) being the same fountain or source.

The same point is raised in bill of exceptions No. 6 with reference to the watch of defendant. Hamilton states that defendant while under arrest told him where to find a watch, and that he found a watch as directed by defendant; and, when asked by the State’s counsel, “ where is the watch,” answered, “ Newt. Ogle, deceased’s brother, claimed it as Price Ogle’s property, and I gave it to him.”

Newt. Ogle swears that he had gotten the watch, and that the same was the property of E. P. Ogle, deceased. It is evident that the same observations and conclusions made and drawn relating to the testimony of Hamilton touching the brown horse apply to this matter with reference to the watch.

As above remarked, the matters above discussed are those only which require attention. We have, however, given each error as signed by appellant a most critical examination, and if there is such error as will require of us a reversal of the judgment, we have not been able to discover the same.

Of the guilt of defendant there is not the slightest doubt, if guilt can be established by circumstantial evidence. Again, the jury, strange to us, found appellant guilty of murder of the second degree. Upon this he should congratulate himself, and feel profoundly grateful for such leniency as the jury in their mercy have awarded him.

There being no error presented in the record, the judgment is affirmed.

Affirmed.

[Opinion delivered October 28, 1885.]