Oates v. State

121 S.W. 870, 56 Tex. Crim. 571, 1909 Tex. Crim. App. LEXIS 327

• Court: Court of Criminal Appeals of Texas
• Decided: June 23, 1909
• Docket: No. 4339.
• Status: Published

Opinions

BROOKS, Judge.

The appellant was convicted in the District Court of Dallas County of the crime of murder in the first degree, and the penalty of death assessed against him by the jury. This is the fourth appeal of his case. The opinions of this court in the other appeals will be found in the following volumes: 48 Texas Crim. Rep., 131; 86 S. W. Rep., 769; 12 Texas Ct. Rep., 921; 50 Texas Crim. Rep., 39; 95 S. W., 105; 16 Texas Ct. Rep., 493; 51 Texas Crim. Rep., 449; 103 S. W., 859, where a full history of the case is given.

When the case came on to be tried last, Hon. W. W. Helms was the judge of the Criminal District Court of Dallas County. He was disqualified to try the case, in that as assistant county attorney of Dallas County he had been engaged in the prosecution of appellant in a former trial; or former trials of this case. Thereupon he certified his disqualification to the Governor, who, being so advised, appointed Hon. W. S. Lemmon, a member of the Dallas bar, who was a private citizen, a practicing lawyer, but not a judge of any District "'riurt in this State, to try this cause. Soon thereafter Mr. Lemmon took the usual and required oath of office, and proceeded to set the case for trial, ordered a special venire, over the drawing of which he presided under the provisions of the Act of the Thirtieth Legislature, applying to counties having a city or cities of more than twenty thousand population. Upon the call of the case for trial Mr. Lemmon, assuming to act as judge of the said Criminal District Court of Dallas County, the appellant, through his counsel, presented in limine his objection and exception to proceeding to trial in said case before the said Lemmon, as judge, and in effect urged a plea to the jurisdiction, right or authority of the said Lemmon to try said cause: First, calling in question the right and power of the Governor to appoint a practicing attorney to act as special judge in his cause. This motion was overruled, and all the facts necessary to a decision of the validity of Lemmon’s appointment, and his right to try the case, as judge, are preserved in and evidenced by the record. In line with this same contention, appellant moved to quash the venire theretofore summoned, because under the Constitution and laws of this State, Mr. Lemmon was not authorized to preside over the drawing of same, as well as for other reasons not necessary here to notice. This motion was also overruled, and appellant was compelled to submit to the trial of his case in said court before Mr. Lemmon as judge, and to select a jury from the venire drawn under his direction. Appellant excepted to this action of the court, and evidences the facts as to both motions or pleas by proper bill of exceptions. Indeed, there is no dispute about the facts, and we are confronted at the threshold of the case with the question as to whether, under the law as it existed at the time of the trial, the Governor of this State had the constitutional and legal right to appoint a practicing lawyer, not a district judge, as special judge to try a pending case, whé're the presiding judge of such court is disqualified.

On this question counsel for appellant submit the following proposition: “The Governor of the State of Texas has no authority in law to appoint a practicing lawyer as special district judge to try the cause where the presiding judge is disqualified; and such attempted appointment confers no power, authority or jurisdiction on such practicing lawyer to hear and determine any of the issues in said cause, or to preside over the trial thereof. The only power the Governor has in such cases is to direct the judge of some adjoining district to exchange benches with the judge of this court for the purposes of trying this cause.”

Section 11 of article Y of our State Constitution, insofar as it relates to district judges, is as follows: “When a judge of the District Court is disqualified by any of the causes above stated, the parties may, by consent, appoint a proper person to try said case, or, upon their failing to do so, a competent person may be appointed to try the same in the county where it is pending, in such manner as may be prescribed by law. And the district judges may exchange districts, or hold courts for each other, when they may deem it expedient, and shall do so when required by law.”

It will be seen from this provision of the Constitution that parties have a constitutional right to agree upon a special judge without any legislation in reference to the matter. This was decided in-the case of Parker County v. Jackson, 5 Texas Civ. App., 36.

Article 1069 of our Bevised Civil Statutes of 1895 is as follows: “Appointment of judge by the Governor. Whenever a judge of the District Court is disqualified to try a civil case pending in any of the courts of his district, and the parties shall fail at the first term of the court to agree upon a special judge, it shall be the duty of the judge to certify to the Governor that he is disqualified to try such ease, and the failure of the parties to agree upon a proper person to try the same; whereupon the Governor shall proceed to appoint some person learned in the law to try such case.”.

Article 1070 of the same chapter provides: “Appointment of judge—Additional provisions. Whenever any case or cases are called or pending in which the district judge, or the special judge chosen, as hereinbefore provided, shall be a party, or have an interest, or have been attorney, or of counsel, or otherwise disqualified from sitting in and trying the same, no change of venue shall be made necessary thereby; but the parties or their counsel shall have the right to select and agree upon an attorney of the courts for the trial thereof; and if the parties or their attorneys shall fail to select or agree upon an attorney for the trial of such case at or before the time it is called for trial, or if the trial of the ease is pending, and the district judge should become unable to act, or is absent, and a special judge is selected who is disqualified to proceed with the trial, and the parties fail to select or agree upon a special judge who is qualified, at once, it shall be the duty of the district judge, or special judge presiding, to certify the fact to the Governor immediately, by telegram, mail or otherwise, whereupon the Governor shall appoint a special judge, not so disqualified, to try the same. The evidence of such appointment by the governor may be transmitted by telegram or otherwise. The special judge so appointed shall qualify as provided in section first of this act, and such special judge shall proceed to the trial or disposition of such case immediately, if the trial is pending, otherwise when called or reached, as in other cases.”

Under the above and foregoing articles, the parties having failed to agree upon a special judge, it was the duty and the right of the Governor of this State to appoint Hon. Walter S. Lemmon special judge of said court to try said case.

Appellant insists that the Act of the Legislature, approved June 19, 1897, in terms repealed articles 1069 and 1070, above quoted, and that, under the law as it now exists, such power of appointment no longer exists. The law in question is as follows:

“Section 1. Be it enacted by the Legislature of the State of Texas: That articles 1069 and 1070 of the Revised Civil Statutes of the State of Texas be so amended as to hereafter read as follows:

“Article 1069. Whenever any ease or cases, civil or criminal, are pending in which the district judge is disqualified from trying the same, no change of venue shall be made necessary thereby; but the judge presiding shall immediately certify that fact to the Governor, whereupon the Governor shall designate some district judge in an adjoining district to exchange and try such case or cases, and the Governor shall also notify both of said judges of such order, and it shall be the duty of said judges to exchange districts for the purpose of disposing of such case or cases, and in ease of sickness or other reasons rendering it impossible to exchange, then the parties or their counsel shall have the right to select or agree upon an attorney of the court for the trial thereof.

“Article 1070. Whenever a special judge is agreed upon by the parties for the trial of any particular cause, as above provided, the clerk shall enter in the minutes of the court, as a part of the proceedings in such cause, a record showing:

"1. That the judge of the court was disqualified to try the cause; and

“2. That such special judge (naming him) was by consent agreed upon by the parties to try the cause; and

“3. That the oath prescribed by law had been duly administered to such special judge.

“Section 2. That all laws and parts of laws in conflict with this act be, and the same are, hereby repealed.

“Section 3. The fact that under the present law there is a heavy annual expense entailed upon the State for the payment of special judges, which could be avoided by the regular district judges exchanging districts, creates an emergency and an imperative public necessity requiring that the constitutional rule requiring all bills to be read on three several days be suspended, and that this act take effect and be in force from and after its passage, and it is so enacted.”

There can be no cavil over the question, as appellant insists that, if the last cited act is constitutional, that it repeals the preexisting law, and deprives the Governor of this State of the power to appoint a district judge in the manner and form as was done aboye, but we hold said act unconstitutional in that, by the terms and conditions of said Act of 1897, the parties are deprived of the right to agree upon a special judge. The reason for stating that said act is unconstitutional, which must always be done with great deference to the constitutional right of the Legislature to construe the Constitution as well as the courts, is this: The Act of 1897 deprives litigants of the right to agree upon a special judge to try their cases, which right is circumvented and destroyed by the statute in providing for an exchange of judges in lieu of the agreement. It is true that article 1070 of the act provides that litigants can agree on a judge, but this right is subordinated to and may be dependent upon another'condition in the statute, to wit, the exchange of benches by the designation through the Governor of a judge of an adjoining district to try the case. If the Governor has the constitutional right to designate another judge to try the case, then he thereby becomes empowered with the right to destroy the constitutional privilege of litigants to agree upon a judge. The last cited article says that the reason for this legislation is that there is a heavy annual expense entailed upon the State for the payment of special judges, which could be avoided by the regular district judges exchanging districts, and this fact creates an imperative necessity requiring that the constitutional rule be suspended which requires bills to be read on three several days. This enforces the idea that the Legislature intended, and it was its direct purpose, to repeal or abrogate, as near as they could, the constitutional right of litigants to agree upon a special judge. This being true, this clause of the statute is clearly unconstitutional; that is, the clause authorizing the substitution of a judge of an adjoining district in lieu of a judge agreed upon by the parties. There can be no cavil, we take it, as stated repeatedly, over the constitutional right of parties to agree upon a judge, and this article—that is, article 1069 of the Act of 1897—deprives litigants of their constitutional rigid. This being true, can the latter clause of the act remain, or can other provisions of the act remain? We say not, since it is a well-known rule, very aptly stated by Black in his work on Constitutional Law, page 65, as follows: “But when the parts of a statute are so mutually connected and dependent, as conditions, considerations or compensations for each other, as to warrant a belief that the Legislature intended them as a whole, and that, if all could not be carried into effect, the Legislature would not pass the residue independently, if some parts are unconstitutional and void, all the provisions which are thus dependent, conditional, or connected, must fall with them. But if the purpose of the- statute is to accomplish a single object only, and some of its provisions are void, the whole must fall, unless sufficient remains to effect the object without the aid of the invalid portion. And if the unconstitutional clause can not be rejected without causing the statute to enact what the Legislature never intended, the whole statute must be adjudged invalid.” See also Cooley on Constitutional Limitations, page 211, 6th ed., and Black on Construction of Statutes, page 96.

In the ease of Texas & Pacific Railway Company v. Mahaffey, 98 Texas, 392, the Supreme Court of this State, in passing upon a similar question and laying down a similar rule of statutory construction, used the following language: “It seems to us that the main purpose of the act was to prohibit dealing in railroad tickets, which had been issued to travelers, and which for any reason remained, either in whole or in part, an outstanding obligation of a railroad company to carry a passenger. The scheme was to accomplish this object, and at the same time to avoid doing an injury to the holders of such tickets by requiring the railroad companies to redeem them. Therefore, by section 5 it was made the duty of the companies to redeem such tickets, and a penalty was provided for their failure to do so. For this reason we are of the opinion that the propriety of requiring the railroad companies to redeem unused tickets grew out of the provision which prohibited the sale of such tickets, and that, but for the enactment of section 3, section 5 would not have been passed. Therefore the two sections must fall together.” Another portion of the opinion recites the fact that in the case of Jannin v. The State, 42 Texas Crim. Rep., 631, our Court of Criminal Appeals has held that section 3, providing a penalty for the sale of a certain class of tickets, was unconstitutional. Of course, there could be no serious contention, under the well-settled authorities of this court, as well as the Supreme Court, that the judge who tried this case could not be a de facto judge. This has been settled by too many authorities and too numerous to mention. If his appointment was void, then he had no authority whatever to try this case. But we hold that he was a de jure judge, appointed under authority of an Act of the Legislature of 1895, above cited in this opinion, and that the Governor had a constitutional and statutory right to appoint him, and that his appointment in all things was formal. So believing, we think appellant’s contention is incorrect, and that the Act of the Legislature last cited, containing other provisions than the one here under consideration, are also invalid, including the one under consideration, for the reason that the act as an entirety can not stand, since the Legislature would not have passed that part of the act here declared unconstitutional if they had known same was such, since the purpose of passing the law was to save expense. Most of the expense incident to special judges are those appointed or agreed on by the parties. This act eliminates the constitutional right to agree, and to that extent alone would save expense. So, no economy being obtained by other provisions of the statute, in view of the fact that the clause here under consideration is declared unconstitutional, we must presume that the Legislature would not have passed the rest of the act if they had known the provisions here were unconstitutional. We do not feel disposed to treat the matter further, but hold that the Act of 1897, authorizing district judges to be designated to hold court in adjoining districts, thereby depriving parties of the right to agree, is unconstitutional and void, and that the other provisions of the Act of 1897 are equally so for the reasons above stated.

Appellant’s second assignment of error complains that the court erred in overruling appellant’s motion to quash the special venire herein, on the ground that the law of the Thirtieth Legislature, page 269, authorizing the drawing of a jury under what is known as the jury-wheel law, is unconstitutional and void. This question has been passed upon by this court, and held adversely to appellant’s contention, in the cases of Smith v. State, 54 Texas Crim. Rep., 298; 113 S. W. Rep., 289; Brown v. State, 54 Texas Crim. Rep., 121; 112 S. W., 80, and Waters v. State, 54 Texas Crim. Rep., 322; 114 S. W., 628.

Appellant insists that the court erred in refusing to grant him a new trial on account of the misconduct of the jury, in that the jury discussed the final results of the trial of Holly "Vann, appellant’s codefendant. The juror Vineyard testified as follows: “The jury retired to consider the case under the charge of the court on Wednesday afternoon, about 3 o’clock, and arrived at a verdict about 3:30 or 9 o’clock Friday morning. During the time the jury were deliberating on the case, and before a verdict was reached, some member of the jury—I think Mr. Laird, but won’t be sure—said that Holly Vann had been hung for this same offense, and that the evidence showed that the defendant was as guilty as Vann was. Sometime during that time the jury were deliberating, and before the verdict was reached, some of the jury, I don’t remember who, said this was the fourth trial of this case—that it had been tried three times —and that he had received the death penalty each time. I don’t remember who said it. I never heard anything said about the failure of the defendant to testify, nor about his former character or career.”

Whereupon, on this issue being joined, A. S. Baskett was sworn for the State, and testified: “I think I examined each juror as to whether he heard of the result of the Holly Vann case, and of this case on any former trial. My recollection is that some of them had heard of both, but a number had heard of neither. The juror Williams had not heard of either. The juror Sturgess had heard of the result of the Vann case, but my recollection is he had not heard of the result of this case. Each one that was taken that had heard of either one swore that that would not influence them in arriving at a verdict in this case. That they could try the defendant according to the evidence and charge of the court as fairly as if they had not heard of it.” Mr. Baskett was attorney for appellant upon the trial of the case as well as in this court.

E. A. Sturgess, being sworn for the State, testified: “I sat on the jury in the Burrel Oates case in this court in October. I was elected foreman of that jury. When I was taken I had heard of the result of the Holly Vann case and the result of this case on the former trials. I told the attorneys and court so at the time. The jury went out with the charge of the court one afternoon about three o’clock. They elected me foreman. We then took a ballot on guilty or not guilty. The first ballot which was taken the first evening was twelve for guilty. Then we voted on the punishment. There were nine for the death penalty and three for life sentence. I was one of the three for life sentence. The other two were Burkhead and Christenson. We took several ballots that evening without any change. The next morning Mr. Burkhead and Mr. Christenson went over to the death penalty. We stood then eleven for the death penalty and one for life. We stood that way all that day, and until the following morning, when I agreed to the death penalty. Yes, I heard the result of this case on the former trials discussed in the jury room by several of the jurors, but I don’t remember the names of but one. I remember his name because he spoke of it five or six times. That was after Mr. Burkhead and Mr. Christenson had gone over to the death penalty. It occurred on the second day. It was before I agreed to the death penalty. When it was spoken of I told them it had nothing to do with this case. It did not influence me in my verdict. I made up my verdict from the law and the evidence. Every time it was mentioned I told them it had nothing to do with this case, and that I was foreman of that room and they must not discuss it. The result of the Vann case was also mentioned by the same juror. That was while the jury stood eleven to one. That did not influence me.” Cross-examined by the defendant, Sturgess testified: “That the juror who spoke of the former verdicts in this case so often was Mr. Laird. I hate to tell it, but if I have to I will. All the remarks were made to me. I was the only one of them that was standing off for a life sentence. As soon as I came over to the death penalty we returned the verdict. That was Friday morning about 9 o’clock. That juror said the defendant had already been tried three times, and had received the death penalty each time. I told him it did not make any difference how many times he had been tried—that had nothing to do with this trial. He said forty-seven men had said he ought to be hung, and one was saying he ought to be sent to the penitentiary; that I was putting my judgment against forty-seven. I told him it made no difference if ninety-nine said he ought to be hung. That had nothing to do with it. He kept on, and finally threw some sort of a slur at me, and we liked to have had a circumstance there in the jury room. I told him it had nothing to do with this case; that he must not be slurring at me, I would not stand it; that I was foreman of that room, and they must not discuss that matter any more. I never heard it mentioned any more. That was on Thursday. Yes, I heard this same man, Laird, speak of the result of the Vann case. He said there in the jury room, while we were considering of our verdict, that Holly Vann had been hung for this same thing, and what would the people of Dallas County think of us if we should send the negro to the penitentiary after the white man had been hung. That happened before I agreed to the death verdict. That was on Thursday, but after Burkhead and Christenson had agreed to the death verdict. -That was spoken to me. I heard Mr. Williams, one of the jurors, say, CI wish the defendant had gone on the stand and testified. He might have cleared up some circumstances.’ That was all that I heard said about the failure of the defendant to testify. This all occurred in the jury room while we were deliberating on our verdict, and before we reached a verdict. I never heard anything said about the former life or character of the defendant.”

This is all the testimony that was introduced on the trial of this issue. It appears from the foregoing statement that the foreman of the jury held out for quite a while for life sentence. He further states in his testimony that he knew of the previous verdicts, and so stated at the time he was taken on the jury. We do not think, in the light of this statement, and the balance of the testimony above detailed, there was any such comment upon either the failure of the defendant to testify or the existence of previous verdicts as will authorize us to reverse this case. We have several times held lately that bare allusions to these matters will not operate a reversal of the case. We do not believe there was anything here stated that would justify us in so doing. See Arnwine v. State, 54 Texas Crim. Rep., 213, decided at the recent Tyler term.

The only remaining question for our consideration is the sufficiency of the evidence. To our minds it in all respects measures up to the requirements of the law for the infliction of the death penalty. That appellant, in company with Holly Vann, murdered the deceased, Sol Aranoff, the evidence excludes every reasonable doubt of; that they murdered Sol Aranoff in order to secure his money is also- beyond cavil. The jury have seen fit four several times to inflict upon appellant the death penalty, and we believe his conduct, and the circumstances surrounding it, and the mode, animus and purpose actuating him at the time of the commission of this offense, clearly justify the jury in their verdict. The judgment is in all things affirmed.

Affirmed.