McInturf v. State

20 Tex. Ct. App. 335, 1886 Tex. Crim. App. LEXIS 55

• Court: Court of Appeals of Texas
• Decided: February 17, 1886
• Docket: No. 1904
• Status: Published

Opinion

White, Presiding Judge.

This is an appeal from a judgment convicting appellant for the murder of one E. E. Hamilton, alleged to have been committed on the 18th day of December, A. D. 1878. By verdict and judgment his punishment is fixed at life imprisonment in the penitentiary.

In his motion in arrest of judgment appellant raised the issues that the penalty assessed by the verdict was not authorized by the law in force 18th December, 1878, when the offense is alleged to have been committed; that the law in force at that time, affixing death alone as a punishment, was the only law by which he could be tried and punished, and that to apply the alternative punishment of “confinement in the penitentiary for life,” which was only incorporated into the Penal Code at its revision and adopted July 24, 1879, or more than six months after the crime was committed, would be to violate the inhibitions contained both in the Federal and State Constitutions against the operation of ex post facto laws, and also the further prohibition contained in our State Constitution against retroactive laws. (Const., art. 1, sec. 16.)

Again, it is strenuously insisted that, at the time of the commission of this crime (18th December, 1878), and prior to the adoption of the Revised Penal Code, there was no law providing a penalty for murder in the first degree. This last proposition, which we will first notice, has its origin in this condition of the history of the law of murder, or rather its punishment, in Texas.

By the act of February 12, 1858, original Penal Code, article 612a, the punishment was fixed at death or confinement in the penitentiary for life. By Oldham & White’s Digest, adopted in 1859, the punishment for murder of the first degree was fixed absolutely and without alternative at death. (O. & W. Dig., Penal Code, art. 612a.) By the Constitution of 1869 juries in capital cases were empowered to substitute imprisonment to hard labor for life in lieu of the death penalty. When our present Constitution was adopted, it contained no provision whatsoever with regard to the punishment for murder, but was wholly silent upon the subject; and the matter was not again the subject of legislation until the Revised Codes were adopted, the 24th of July, 1879, when the punishment for murder of the first degree was again fixed alternatively at death or confinement in the penitentiary for life. (Penal Code, art. 609.)

The position assumed is that the law of the punishment from the adoption of the Constitution of 1869 was the law of the crime from that time on until the adoption of the present Constitution, March 24,1876; that the present was intended to and did supersede entirely the Constitution of 1869, leaving none of its provisions of any further force and effect, except such as were expressly continued in operation; that, nothing being said in the last Constitution about murder or its punishment,— in other words its being entirely silent upon the matter,— it was an abrogation instead of a perpetuation of the clause as found in the Constitution of 1869; and, having repealed and abrogated that clause, which was the only law in force at the time with regard to the punishment of murder, the State, from the date of the adoption of the Constitution of 1876, had no law punishing murder, and all the laws theretofore punishing it were repealed by the adoption of said Constitution; that, from the adoption of the Constitution of 1876 to the Revised Code, 24th of July, 1879, there was no law in existence denouncing a punishment against murder of the first degree.

The question is not a new one in this State; the 'same positions have been taken and insisted upon more than once, and in our opinion have been decided more than once. As held in these decisions the rule is that by the statute law as found in Oldham & White’s Digest, adopted in 1858, the punishment for murder of the first degree was fixed by law at death/ The Constitution of 1869 did not supply or intend to supply a new law nor to repeal the statutory one; it simply provided for a commutation, or a different penalty by way of commutation.

The language used shows this, and can admit of no other construction. It is in these words: “That in all cases where by law it may be provided that capital punishment may be inflicted, the jury shall have the right, in their discretion, to substitute imprisonment for life.” (Const. 1869, art. Y, sec. 8.) Row this clause, instead of repealing or abrogating former laws, recognizes their force and existence and binding effect as they are, but gives to the jury the authority to ameliorate or commute their punishment in capital cases. When that Constitution was done away with by one entirely supplanting it and silent upon this matter of commutation, what was the result? That all laws inflicting capital punishment were repealed? By no means. But simply that the commutation, or alternative penalty, which it had vested in the discretion of the jury, was repealed or taken away,— leaving the law inflicting capital punishment just as it was before that commutation clause or alternative punishment found expression in the Constitution. The law of punishment for murder in the first degree as found in Oldham & White’s Digest, and which had never been repealed, still continued to be the law until the present Penal Code was adopted in 1879, when the alternative punishment was again made the law by statutory enactment as it had been in the original Code of 1858. (See Murray v. The State, 1 Texas Ct. App., 417; Hunt v. The State, 7 Texas Ct. App., 212; Cox et als. v. The State, 8 Texas Ct. App., 255; Doran v. The State, 7 Texas Ct. App., 385.)

When this murder, then, was committed, the 18th of December, 1878, the only punishment known to our law was that of death. Before the trial, however, the alternative punishment became part of the law. Was it retroactive or ex post facto as applied to this case, the facts of which occurred before its adoption ? What are ex post facto laws? This question is answered negatively in the language of Judge Chase in Calder v. Bull, quoted by this court in Murray v. The State, 1 Texas Ct. App., 417. He says: “But I do not consider any law ex post facto within the prohibition that modifies the rigors of the criminal law, but only those that create or aggravate the crime, or increase the punishment, or change the rules of evidence for the purpose of conviction.” (3 Dall., 309; Holt v. The State, 2 Texas, 363; Dawson v. The State, 6 Texas, 347.) In no sense can we conceive how a mere remedy which ameliorates punishment and inures solely to the benefit of the party to be punished can be considered as coming within the prohibition of retroactive or ex post facto laws; and this is particularly obvious to our minds where the party himself has it in his power to decline the ameliorated punishment and elect to be punished under the law as it was when the crime was committed. This, Hoftsinger did, and perhaps he went to the gallows on account of his temerity. (Noftsinger v. The State, 7 Texas Ct. App., 301.)

It is provided by statute that, “ when the penalty for an offense is prescribed by one law and altered by a subsequent law, the penalty of such second law shall not be inflicted for a breach of the law committed before the second shall have taken effect. In every such case the offender shall be tried under the law in force when the offense was committed, and, if convicted, punished under that law; except that, when by the provisions of the second law the punishment of the offense is ameliorated, the defendant shall be punished under such last enactment, unless he elect to receive the penalty prescribed by the law in force when the offense was committed.” (Penal Code, art. 15.) The defendant never elects except in case of amelioration. When the punishment for an offense is ameliorated by statute after its commission, the defendant upon conviction must be punished according to the latter enactment unless he elect to receive the penalty affixed by the former law, and such election must be made before verdict. (Maul v. The State, 25 Texas, 166; Veal v. The State, 8 Texas Ct. App., 474; Perez v. The State, 8 Texas Ct. App., 610.) If appellant desired to be punished under the old law he should have made his election, and the court doubtless would have accorded him the right. Having failed to do so, the duty of the court to give him the benefit of the ameliorated punishment was imperative.

Objection is made to the sufficiency of the verdict as copied into the judgment. As set out in the judgment, the verdict does not assess or fix the term or time of confinement in the penitentiary; that is, it finds him guilty of murder of the first degree, assesses his punishment at confinement in the penitentiary, but does not state that the confinement is to be for life. If this error was not shown by the record itself to be a mere clerical one, we should hold it to be fatal. But the record elsewhere sets forth the verdict as it was rendered, and it is in statutory form and assesses the punishment in the penitentiary at imprisonment for life. Such mistakes are, however, inexcusable upon the part of a clerk in cases of such gravity and importance. As presented by the record, the objection to the verdict fails of merit.

The defendant’s first bill of exception was saved to the refusal of the court to require the State’s counsel (the district attorney and counsel employed to assist in the prosecution) to furnish defendant with the name or names of parties who had employed the assistant counsel, so as'to enable defendant intelligently to exercise his right of challenge to the jurors by ascertaining whether or not said jurors were related in the third degree to said private prosecutors. In his explanation to the bill the learned judge states that in testing the jurors he allowed full latitude and they were freely examined touching their qualifications upon this point, and that none of them were found to have been aiding the State by contributing to the prosecution.. It is a ground of challenge under the statute that the proposed juror is related within the third degree to the private prosecutor, if there be one. (Code Crim. Proc., art. 636, subdivis. 10.) This precise .question came up in Heacock’s case, in which it was shown that there was a list of persons who had subscribed a fund to employ counsel to prosecute. It was held that such subscribers were not private prosecutors within the meaning of the statute, and that the refusal of the court to compel a disclosure of the nam'es of the parties was not error where a full examination of the particular jurors had been made with regard to their connection with the fund subscribed. (Heacock v. The State, 13 Texas Ct. App., 97.) That case is decisive of the point, and the court did not err in its ruling.

Defendant’s second and third bills of exception relate to the ruling of the court in excluding evidence with regard to murders committed by the deceased B. B. Hamilton, during the war, between the years 1862 and 1864. It was not proposed to show or offer made to prove that any one connected with or related to or who were likely to avenge the murdered parties were in proximity to the place of homicide at or about the time it was committed, or had any opportunity to kill the deceased. The rule now established is that “investigation with reference to other parties than the accused should not be permitted in cases either positive or circumstantial unless the inculpatory facts are such as are proximately connected with the transaction. In other words, to show remote acts or threats would not be admissible unless there were other facts also in proof proximately and pertinently connecting such third party with the homicide at the time of its commission.” (Dubose v. The State, 10 Texas Ct. App., 230; Means v. The State, 10 Texas Ct. App., 16; Aiken v. The State, 10 Texas Ct. App., 610; Hart v. The State, 15 Texas Ct. App., 202; 72 Ala., 522.) There was no error in the ruling of the court in this matter.

Matter presented in the fourth bill of exception does not show error. Just after deceased Hamilton was shot he staggered into the house, asked his wife to examine his wound, and when she told him the ball had passed entirely through his body, he remarked: “I am a dead man, but, thank God, I die innocent;” and, in reply to the question by his wife, “Who did it, Bob?” he replied “Morg. Mclnturf (the defendant) and them.” This evidence was held by the court below to be res gestee. We are of a like opinion. (Booth v. The State, 4 Texas Ct. App., 203; Bejerano v. The State, 6 Texas Ct. App., 282; Foster v. The State, 8 Texas Ct. App., 248; Veal v. The State, id., 475; Stagner v. The State, 9 Texas Ct. App., 441; Warren v. The State, id., 619; Pierson v. The State, 18 Texas Ct. App., 525.)

In his fifth bill of exception appellant complains of remarks made by counsel employed to assist in the prosecution in his address to the jury. It had been made to appear in the evidence that the deceased was a witness for the State in a prosecution pending against defendant and perhaps another party. Counsel in his address to the jury, in developing a supposed motive for the killing on the part of defendant, spoke of his having killed the witness against him in order to get rid of his testimony, and made some additional remarks to the effect, as understood by opposing counsel, that they, the jury, were asked to turn loose a man who might kill some other honest man who had dared to stand up and testify in this case against him. When counsel objected to the argument as “unfair and improper,” the court called the speaker’s attention to it, and, when informed of the objection, counsel immediately denied that he had made such an argument, and added to his explanation of what he had and did say to the jury that “ he certainly did not believe that the defendant would injure any witness in this case if acquitted, for he thought this prosecution had given the defendant such a scare as would. deter him from attempting to do any such thing.” It appears that so soon as objection was made counsel disclaimed the statement or argument imputed to him, and the court states in his addenda to the bill that the disclaimer and explanation of counsel seemed to him well calculated to dispel any unfavorable impression, if any existed.” Under the circumstances stated in the explanation of the court to the bill, we cannot see that it presents matter for an animadversion, much less reversible error. It was clearly within the bounds for counsel to seek a motive for facts legitimately in evidence in the case, and to urge it upon the consideration of the jury.

On the motion for new trial defendant was permitted to introduce some testimony which tended to contradict the testimony of the • State’s principal witnesses in some material facts. Why this evidence was not introduced on the trial we are not apprised. The sixth bill of exceptions complains that the court overruled the motion for a new trial after hearing this evidence. As to the credibility of the witnesses, the lower court was in a better position by far to judge than are we, and even from our standpoint the evidence, if true, would •not necessarily establish the falsity of the statements of the State’s witnesses with regard to the light or darkness of. the night at the time of the homicide, because the one set of witnesses spoke of the appearance of the night in the earlier part and the other of the latter part of the night,— which, they said, was dark, drizzling and sleeting, and that early the next morning a snow fell. We can perceive no contradiction nor conflict in the testimony. Each of the witnesses may have testified with exact truthfulness; it is by no means impossible, and altogether probable, that they have done so.

The matter presented in the last or seventh bill is substantially the same as already discussed in the fifth bill, supra, and requires no additional notice at our hands.

■ Tt is most strenuously insisted that the evidence is not sufficient to support the verdict and judgment. We cannot agree with the view of able counsel for appellant on this proposition. In our opinion, the case against appellant is most clearly, fully and satisfactorily established. His identity with the assassin in this most heinous murder is amply made out if the State’s witnesses are to be believed; and their statements as to the important details of the transaction bear all the appearances of truth. Whatever may have been defendant’s motive, whether to get rid of a witness whose testimony he feared, or whether he was the hired assassin of other parties, makes no difference; that he was the assassin who murdered, in the presence • of his family, the man whose hospitality he had as á stranger enjoyed on several occasions is, we think, most clearly established. No reversible error has been made to appear on his appeal; he seems, so far as disclosed in the record, to have had a fair and impartial trial. And it only remains for us to affirm the judgment, which is accordingly done.

[Opinion delivered February 17, 1886.]

Affirmed.