Sullivan v. State

6 Tex. Ct. App. 319

• Court: Court of Appeals of Texas
• Decided: July 1, 1879
• Status: Published

Opinion

Winkler, J.

This is an appeal from a judgment of conviction of murder in the first degree, imposing the death penalty. The most important and interesting inquiry here presented for consideration may be stated to be substantially as follows: —

The appellant having been accused of the murder of a woman, described in the indictment as one “Harriet (a freedwoman, whose name, other than Harriet, is to these grand jurors unknown),” soon after the homicide was arrested, and taken before the county judge of Gonzales County for examination, on which examination a witness called Owen E. Dean testified ; and on the trial at which the conviction was had, the witness Dean not being in attendance, counsel for the State proposed to reproduce his testimony taken before the county judge on the preliminary examination, and for this purpose placed on the stand, as a witness, one Ed Titcombe, who qualified himself to testify, in the following manner, as set out in the statement of facts: “ He was deputy-clerk of the County Court, and was present at an examining trial held by John S. Conway, county judge of Gonzales County, on the 11th day of July, 1877. The examination was held for the purpose of ascertaining whether or not defendant, Thomas Sullivan, should be committed to jail, he being charged with the killing of the woman Harriet, and the examination being had to ascertain the facts in that case. The defendant, Thomas Sullivan, was present, and had an opportunity to cross-examine the witnesses. He was asked by Judge Conway if he desired to cross-examine the witnesses, and was so asked in relation to each witness. Owen Dean was sworn as a witness in said examining court by me, and testified in the case, after being threatened with punishment by the court for refusing to testify. I took down his testimony. It was reduced to writing, and he signed his statement 1 Owen E. Dean.’ I can state, substantially, all that said Owen E. Dean testified to on said examination. He (Titcombe) was then presented with the written statement at said trial, and was going on to state Dean’s testimony, when counsel for defendant suggested that he had better read the evidence from the record; which was done, and the witness stated as follows.” Here follows what purports to be the statement of Dean, as given by him on the examination before the county judge.

This testimony was admitted over objection by defendant’s counsel, on the following grounds, as set forth in a bill of exceptions, to wit: “1st. Said witness had not been put under the rule with other witnesses for the State, but had been in the court-room during the trial. 2d. Because it had not been proven that Owen E. Dean was dead. 3d. Because it was not shown that Owen E. Dean was beyond the jurisdiction of the court, or was even residing permanently out of the State. 4th. Because it was not proven that the pretended statement of Owen E. Dean was made in any court having any manner of jurisdiction over the cause or over the defendant. 5th. Because it was not proven that the said purported statement of Owen E. Dean was made by said Dean under oath, and it was not shown that the pretended confessions made by said defendant to said Dean were voluntarily made.” All of which objections, the bill of exceptions recites, were overruled by the court.

It is further shown by the statement of facts, and by a bill of exceptions, that certain testimony of a witness named Smeed was admitted over objection by defendant. The testimony of the witness Smeed was substantially as follows : The witness knows Owen Dean; don’t know his middle name, or that he had any. He was here for several months, to see after his brother, who was in jail, charged with murder. He was here from January until August of last year. He went away out of this State. I wrote a letter to the postmaster at Marion, Massachusetts, inquiring for Owen Dean. I got a reply, he says, saying that Dean was at Boston, Massachusetts. Among his friends and acquaintances it is generally understood that he is at Boston, Massachusetts. He said that Dean came here from Boston, Massachusetts.

The grounds or objection to this testimony, as set out in the bill of exceptions, were : First. The testimony does not show that the man Owen E. Dean was beyond the jurisdiction of the court, or that he was even living beyond the jurisdiction of the State. Second. That said evidence was hearsay. Third. That the letter of which witness spoke was better evidence than witness’s statement as to the contents of said letter. Fourth. The letter referred to by witness was in regard to Owen Dean, and not Owen E. Dean; and because the man known here as Owen E. Dean was not known in Massachusetts by that name.

Another bill of exceptions recites that the defendant offered a witness to prove that the man called Owen E. Dean was under an assumed name, and not Dean; and also to prove that the man called Owen E. Dean stated to the witness that when the defendant made the pretended confession of guilt to him, said Dean, about which witness Titcombe had testified, that fie (defendant) was laboring under delirium tremens, caused by excessive drink; which was ruled out, on objection by counsel for the State, and the ruling saved by bill of exceptions.

We have stated some of the questions presented by these bills of exception with, perhaps, unnecessary particularity, for the reason that, to state them plainly is to show their insignificance with reference to all that is said concerning the name of the man called Dean. We have no concern as to whether he was passing under an assumed name or not, or whether he had a middle initial letter in his name or not; the only concern the court and jury could have had was, not with the name, but with the identity of the witness who testified in that name before the examining trial before the county judge, and as to his identity there seems no room for controversy. As a general rule of law, a middle name is treated as of no consequence whatever.

The first question here presented is this : Was the county judge lawfully authorized and empowered to hold what the law denominates an examining court? We do not propose to discuss the question further than it relates to conserving the public peace and the subject of commitment, and release on habeas corpus after arrest, without inquiring into the general subject of jurisdiction, this not being deemed of controlling influence in the present inquiry.

It will be remembered that, from the time Texas first threw off the Mexican yoke and organized civil government under Anglo-American ideas and auspices, a part of the machinery of government was the organization of counties, and placing at the head of the judicial authority of each county a judicial officer. It was provided in the Constitutian of the Republic of Texas, that “the Republic shall be divided into convenient counties,” and “there shall be in each county a County Court.” Const. Rep., art. 4, sects. 10, 11. And by act of December 20, 1836, the office of chief justice was created, and it was declared that the County Courts should consist of one chief justice. Pasc. Dig., note 454.

Starting from this standpoint, we find, by noticing the several provisions of the several constitutions and legislative enactments, that from that early day, through the various changes, down to the present time, there has ever been, as a part of the judiciary, the distinct feature of a County Court, presided over by a magistrate, and which feature has been maintained notwithstanding that the scope and extent of the jurisdiction has not in many respects been uniform, nor the presiding officer called by the same name; and whether the officer has been called by one name or by another, the court has been the same, and has maintained characteristics peculiarly its own. We will also constantly see.that when the appellation of “county judge,” “chief justice,” or of “presiding justice” is used, it invariably applies to the presiding officer of the County Court; and hence we find, further, that when the Legislature, in enacting a statute, refers to the presiding officer of the County Court, the appellation in use at the time is the one employed in speaking of him.

Now, when our Codes were enacted, where reference is made to this official, the appellation of “chief justice” is usually employed, because that was the name by which he was at the time known; not to indicate any particular functions, for these are otherwise prescribed, but simply the presiding officer, the chief of the County Court. Bearing these things in mind, we need not be misled by the terms employed by the Code when speaking of this official in connection with officers, peace officers, magistrates, and examining courts, and their authority over the subject of crime, bail, and the like, and by which effect can be given to the various provisions on these subjects, in harmony with the manifest intention of the Legislature and with established rules of applying such legislative enactments.

Some of the provisions of the Code of Criminal Procedure will be noticed: —

Art. 25. The provisions of this Code shall be liberally construed, so as to attain the objects intended by the Legislature,— the prosecution, suppression, and punishment of crime.

Art. 32. It is the duty of every officer known to this Code as a “magistrate” to preserve the peace within his jurisdiction, by the use of all lawful means; to issue all process intended to aid in preventing and suppressing crime; to cause the arrest of offenders by the use of lawful means, in order that they may be brought to punishment.

Art. 33. A chief justice of a county * * * who, when legally applied to, refuses to issue process, or who knowingly and corruptly refuses to discharge a duty imposed upon him by the provisions of this Code, is guilty of an o fence for which he is subject to removal, upon trial and conviction.

Art. 52. Either of the following officers is a “magistrate” within the meaning of this Code: The judges of the Supreme Court, the judges of the District Courts, the chief justice of the county, etc.

Art. 55. When a magistrate sits for the purpose of inquiring into a criminal accusation against any person, this is called an “ examining court.”

Art. 248. Upon examination of a person accused of a capital offence, no magistrate, other than a judge of the Supreme or District Court, or chief justice of a county, shall have power to discharge the defendant, etc.

Art. 249. When it is made to appear, by complaint on oath, to a judge of. the Supreme or District Court, or chief justice of a county, that the bail taken in any case is insufficient in amount, such judge or chief justice shall issue a warrant of arrest, and require of the defendant additional security, according to the nature of the case.

Many other articles might be cited where the term magistrate is used, when the term would apply as well to the chief judicial county officer as to a judge of the District Court, but these will be sufficient, not only to show the importance of this magistrate in a proper enforcement of the provisions of the Code, but also the trouble and confusion which would ensue by any other interpretation of these several articles of the Code than the one here intimated, and would render nugatory many of the provisions of the Code, so far as any county officer is concerned.

In support of this application of the term chief justice, and strengthening our conclusions that the appellation was intended to apply to the chief judicial officer of the county, we find, on an examination of the Revised Code adopted at the recent session of the Legislature, that the term county judge is inserted in the revision wherever the term chief justice is employed in the original, in corresponding articles. So that, when the Revised Code goes into effect the confusion will disappear, until some future Legislature shall change the name of the county judge to some thing else, by unguarded enactment. It is further worthy of note that, so-far as the articles of the Code which relate to the prevention and suppression of crime are concerned, and the definition of the terms magistrate and peace officer, we know of no-material changes until the revision mentioned, which has not as yet gone into effect.

Our conclusions, therefore, are that, in so far as the provisions of the Code of Criminal Procedure relating to-the subjects above set out are concerned, and which speak, of the principal county judicial officer as chief justice, they are intended to apply to the judge who by law presides over the County Court, and that it is altogether unimportant, what particular name or appellation may be given him ;; and that, under the provisions of the Code, that county official, whether called count)'- judge, chief justice, or presiding judge or justice, — or by whatever name he may be called, to distinguish him from other magistrates, —was and is authorized and empowered to hold an examining court.

In the present case, we are of opinion that the county judge had authority to inquire into the accusation against the appellant, and to either swear the witnesses himself, or cause it to be done by the clerk or deputy-clerk, and cause the same to be taken down in writing, and subscribed and sworn to by the witness Dean; and that, so far as the question of jurisdiction is concerned, the court did not err in admitting the testimony.

The next important inquiry is, was it competent for the State to prove, under the circumstances disclosed by the record, what the witness Dean had testified to before the examining court?

The Constititution (art. 1, sect. 10, of the Bill of Bights) declares that “ in all criminal prosecutions ” the accused “ shall be confronted with the witness against him.” The Code of Criminal Procedure, art. 24, provides that “ the defendant upon a trial shall be confronted with the wit nesses, except in certain cases, provided for in this Code, when depositions have been taken.” In treating of constitutional provisions similar to the one above set out, and found in all the constitutions of the several States and in that of the United States, Mr. Cooley lays down as the correct rule, deducible from the authorities, and which we adopt as correct, the following: —

“ The testimony for the people in criminal cases can only, as a general rule, be given by witnesses who are present in court. The defendant is entitled to be confronted with the witnesses against him; and if any of them be absent from the Commonwealth, so that their attendance cannot be compelled, or if they be dead, or have become incapacitated to give evidence, there is no mode by which their statements against the prisoner can be used for his conviction. The exceptions to this rule are of cases which are excluded from its reasons by their peculiar circumstances ; but they are far from numerous. If the witness was sworn before an examining magistrate, or before a coroner, and the accused had an opportunity then to examine him; or if there were a former trial, on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane, or sick and unable to testify, or has been summoned, but appears to have been kept away by the opposite party.” Cooley’s Const. Lim., orig. pp. 363, 364.

Agreeably to Mr. Greenleaf, “upon the question whether this kind of evidence is admissible in any other contingency except the death of the witness, there is some discrepancy among American authorities.” 1 Greenl. on Ev., sect. 163, note. The rule in the text appears to be that, “ when the testimony was given under oath, in a judicial proceeding in which the adverse litigant was a party, and where he had the power to cross-examine, and was legally called upon so to do, the great and ordinary test of truth being no longer wanting, the testimony so given is admitted, after the decease of the witness, in any suit between the same parties. It is also received if the witness, though not dead, is out of the jurisdiction, or cannot be found after diligent search, or is insane, or sick and unable to testify, or has been summoned, but appears to have been kept away by the adverse party. But testimony thus offered is open to all the objections which might be taken if the witness were personally present.”

There has also been controversy as to whether these rules apply to other than civil causes, and the position that they do not apply to criminal cases has been strenuously and ably maintained; but it seems now to be settled that these rules apply to civil and criminal cases alike, so far as reproducing the testimony of a deceased witness is concerned. Whart. Cr. Law, sect. 667, note c, and authorities there cited. “The testimony of a deceased witness, given at a former trial or examination, may be proved at a subsequent trial by a person who heard him testify.” Id., sect. 667. To this extent the question is not an open one in this court. In Black v. The State, 1 Texas Ct. App. 368, it was held that, at a second or subsequent trial of a criminal charge, it is competent for the prosecution to put in evidence testimony given at a previous trial by a witness who-has since died; and such testimony may be proved by a witness who heard it given in, and who can qualify himself to state the substance of it. In Johnson v. The State, 1 Texas Ct. App. 333, it was, after mature consideration, held that the rules and practice of the common law have been substantially adopted by our Code in respect to admitting as evidence for the prosecution the deposition of a deceased witness, duly taken on a former trial of the accused by a court or an examining magistrate, and that the act of 1866 (Pasc. Dig., art. 6605), which expressly secures to the accused the l’ight to use such evidence, does not abrogate or impair that of the State to use such testimony.

But the question here is, not as to the right to reproduce-the testimony of a deceased witness taken at a former trial, but the right here claimed and exercised by the State is to-prove the former testimony of a living witness; or, at least,, one who is not shown or claimed to be dead, but who, it is-claimed, is not within the jurisdiction of the court or its-process. It is not perceived that the reason of the rule-which admits proof of what a deceased witness had on some former occasion, between the same parties, on an examination into the same criminal charge, on a former trial, testified to, as admissible on a subsequent trial of the same ease, does not apply with equal force to one who, though not dead, is beyond the reach of the process of the court. The testimony of the deceased witness is admitted on the idea that the deceased had been confronted with the witness: on the former trial, — had met him face to face, — and that the witness had testified before a competent tribunal, under the sanction of an oath, and an opportunity afforded for cross-examination.

The inaccessible witness has been subjected to the same ordeal, the only difference being that the one is dead and the other out of reach. Each has confronted the accused, testified under the sanction of an oath, duly administered; and as to each, an opportunity for cross-examination has been afforded. According to Mr. Bishop, the principle on which these depositions are — under statutes like those which prevailed in England down to a. recent period — admissible is that, being regularly taken under provision of law, the common law accepts them when it is impossible the personal presence of the witness can be had. 1 Bishop’s Cr. Proc., sect. 1096. It is, however, plain, in matter of judicial reason, that this right to introduce the deposition grows out of the great doctrine of necessity. * * * And in practice it was never known that the sort of depositions thus mentioned were received when the living presence of the witness could be had. Id., sects. 1098, 1099.

The principle applies, not only to these formal depositions, but likewise to evidence of what a witness testified orally at a previous trial. It, moreover, prevails not only in civil causes, but in criminal; and, in general, in the United States as well as in England. There are with us, perhaps, some judicial localities in which this doctrine is not received. * * * But the admission of the evidence is limited, or nearly so, to the case in which the witness is deceased ; and in this case it is the general American doctrine to receive equally the depositions taken as before mentioned, and evidence of the former, or oral, testimony. If the witness is absent by the procurement of the defendant, it is, perhaps, .the American doctrine, the same as it is the English, that the deposition, or evidence of his former testimony, may be .received against him. But when the witness is, without this element, merely in another State, or otherwise beyond the power of the court, this is not sufficient. 1 Bishop’s Cr. Proc., sect. 1098.

These and similar rules — deduced, as they are, from adjudications in other States and countries — are of necessity based upon, and influenced more or less by, statutory regulations, and liable to be modified and controlled thereby, and with us must be held in subordination to whatever local statute, if any, we have on the subject. Here we have a statute which provides that “ the rules of evidence known to the common law of England, both in civil and criminal cases, shall govern in the trial of criminal actions in this State, except when they are in conflict with the provisions of this Code or some statute of this State.” Code Cr. Proc., art. 638. “ The rules of evidence prescribed by the statute law of this State in civil suits shall, so far as applicable, govern also in criminal actions, when not in conflict with the provisions of this Code or of the Penal Code.” Id., art. 639. “ In proceedings before an examining court, the testimony of all the witnesses shall be reduced to writing, signed by them with their names or marks, and all the testimony thus taken shall be certified to by the magistrate.” Id., art. 238. 66 The examination of witnesses shall be in the presence of the accused.” Id., art. 240. “ Should no counsel appear either for the State or the defendant, the magistrate may examine the witnesses, and the accused has the same right.” Id., art. 247.

“ In all criminal prosecutions, when the testimony of a witness has been reduced to writing, signed, and sworn to before an examining magistrate, or before any court, and the witness has died since giving his testimony, the testimony so taken and reduced to writing may be read in evidence by such defendant, as proof of the facts therein stated, upon any subsequent trial for the same offence; Provided, however, that in all other respects the testimony of such deceased witness shall be subject to the established rules of evidence in criminal cases. In every case, the death of the witness must be established to the satisfaction of the court.” Pasc. Dig., art. 6605. Whilst this seems to be a privilege granted to the accused, yet, as we have seen in Johnson v. The State, 1 Texas Ct. App. 333, by the rules of practice the prosecution virtually has the same privilege. And whilst the provisions of this article, as well as the ruling in Johnson’s case, have reference to the testimony of a deceased witness, as we have already seen, the reason for the rule applies as well to a witness whose personal presence cannot be had, and that the testimony of a witness who had been spirited away after having testified ought to be received.

Yet, inasmuch as this species of testimony" is admitted as a sort of judicial necessity, the proof of the facts which constitute the necessity for the departure from general rules ought to be clearly established, before the testimony is admitted,— as, that the witness is dead, that diligent inquiry has been' made for him where it is most likely he would be found, or that the defendant had caused his absence. The proof on this subject should be complete and satisfactory, as the question of the sufficiency of this proof would necessarily be confided largely to the discretion of the judge, and not be revisable on appeal when properly exercised.

On the wdiole, we are of opinion the authorities warrant the following conclusions: First, that a county judge is a magistrate authorized to hold an examining court; second, that when a witness has testified before an examining court on the investigation of a criminal charge against any person, the testimony taken before such examining court, in the manner prescribed by law, may be used as testimony on the trial, upon satisfactory proof being first made that the witness whose testimony is offered has either died since testifying, or been prevented from attending by the opposite party, or that he cannot, after diligent inquiry, be found, or his whereabouts ascertained ; and that the testimony so taken and reduced to writing before an examining magistrate may be used either by the prosecution or by the accused; third, that when a witness has testified on a former trial of the case, it is competent for either party to prove what the witness, if he has since died, testified on the former trial: and, fourth, that, in either case, the bare fact that the witness was out of the State at the time of the second trial would not, of itself, be sufficient ground for admitting proof of his former testimony in a criminal prosecution, unless admitted by consent.

Applying these rules to the case at bar, we are of opinion the prosecution had a right to read as evidence on the trial the testimony of the witness Dean, given in the examining court before the county judge, and that the better evidence as to what he testified would have been the production of the written testimony so taken; and on this account we see no error, as it appears that the witness Titeombe read from the written statement of the witness Dean, taken on the preliminary examination before the county judge.

Yet we are of opinion that the absence of the witness Dean was not sufficiently accounted for, at the trial, to allow "the introduction of his testimony taken before the examining court. The evidence upon which Dean’s testimony was admitted was that of the witness Smeed, hereinbefore set out, which need not be repeated, and which is mentioned in the second bill of exceptions taken to the admission of Smeed’s testimony. To our mind, the tangible defect in this testimony is the want of any showing of proper effort to ascertain the fact as to whether the witness Dean could be produced on the trial, or not; whereas it should have been shown that it was not in the power of the State to produce the witness in person, before admitting his former testimony. One main ground of the statement of the witness Smeed appears to have been based partly upon a letter, which was not even produced on the trial. We are of opinion the showing, taken as a whole, did not show either that any proper effort had been made to learn the whereabouts of the witness Dean, or to show the inability of the prosecution to produce him in person on the trial. This was a matter of great moment to the accused. He did not stand by in silence and permit the error to be committed without objection ; on the contrary, he objected to the proceeding at the time, and also followed it up by bill of exceptions, and in his motion for a new trial, and in his assignment of errors, substantially ; and for this error, which is the turning-point in the case, the judgment must be reversed.

It is shown by bill of exceptions that the defendant offered to prove by a witness (Parker) that the witness Dean was passing under an assumed name. There was no error in excluding this testimony; it was but hearsay.

We are of opinion the objections to the charge of the court are not well taken. In the main, the charge correctly informed the jury on the law of the case as made by the evidence, and there was no important omission. Whether this would be a proper charge on another trial, or not, depends upon the case and the testimony as the same shall be developed. If the charge should need modification or enlargement, these will readily suggest themselves when the occasion arises. There is nothing further suggested by the record requiring any special ruling.

For the single error above set out, the judgment must be reversed and the cause remanded.

Reversed, and remanded