Walker v. State

7 Tex. Ct. App. 245

Opinion

White, P. J.

On a former appeal, this case was reversed because the court below erred in admitting in evidence the confessions of the defendant, because it appeared that the same had not been made in conformity with the rules prescribed by the statute. Pasc. Dig., arts. 3126, 3127. See 2 Texas Ct. App. 326.

A second trial has resulted in a second conviction of murder in the first degree, with the death-penalty. This last conviction was obtained by the State on the fourteenth day of June, 1878, and the case was appealed to and filed at the Austin branch of this court on the tenth day of March, 1879, where it was submitted on briefs, taken under advisement, and regularly transferred to this branch. Since the appeal was perfected the entire statute law of the State has been revised, and the punishment for murder in the first degree has been changed from “death” exclusively (Pasc. Dig., art. 2271), to “ death or confinement in the penitentiary for life.” Rev. Stats., Penal Code, art. 609. In a supplemental brief filed here by the zealous and able counsel who has represented defendant under appointment of the court below, it is contended that the case must be reversed on account of this change in the law with regard to the punishment of the crime, and several provisions of our Penal Code are invoked in support of the position. As the question is one which has elicited some discussion amongst the legal profession of the State, we propose to meet and s'ettle it in this the first case in which it has been presented directly for adjudication.

We reproduce the articles of the Code relied upon, which are as follows : —

“Art. 15. When the penalty for an offence 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 case the offender shall be tried under the law in force when the offence was committed, and, if convicted, punished under that law; except that, when by the provisions of the second law the punishment of the offence 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 offence was committed.” Rev. Stats., Penal Code, art. 15.

“ 17. When by the provisions of a repealing statute a new penalty is substituted for an offence punishable under the act repealed, such repealing statute shall not exempt from punishment a person who has offended against the repealed law while it was in force, but in, such, case the rule prescribed in art. 15 shall govern.”

“Art. 19. No offence committed, and no fine, forfeiture, or penalty incurred under existing laws, previous to the time when this Code takes effect, shall be affected by the repeal herein of any such existing laws; but the punishment of such offence, and the recovery of such fines and forfeitures, shall take place as if the laws repealed had still remained in force; except that when any penalty, forfeiture, or punishment shall have been mitigated by the provisions of this Code, such provision shall apply to and control any judgment to be pronounced after this Code shall take effect, for any offence committed before that time, unless the defendant elect to be punished under the provisions of the repealed law.

“ Art. 20. No penalty affixed to an offence by one law shall be considered as cumulative of penalties prescribed under a former law, and in every case where a new penalty is' prescribed for an offence, the penalty of the first law shall be considered as repealed, unless the contrary be expressly provided in the law last enacted.”

Upon comparison, it will be found that the foregoing articles are literal copies from former existing statutes. Pasc. Dig., arts. 1616, 1618, 1620, 1621.

The position assumed is that the change in the law affixing an alternative punishment or penalty for murder in the first degree was intended as a complete substitute for, and operates as an implied repeal of, the former law which limited the penalty to death ; that if the statute which affixed the penalty is repealed, then no further proceeding can be taken under the repealed law to enforce the punishment after the repealing law takes effect; that this principle applies as well to the proceeding upon appeal in the Court of Appeals as to the court having original cognizance of the offence, and this too in cases where the repealing statute took effect pending the appeal in this court. In support of these propositions we are cited to the doctrine enunciated in Wall v. The State, 18 Texas, 682; Murray v. The State, 1 Texas Ct. App. 418, and Sheppard v. The State, 1 Texas Ct. App. 522. The same question was also discussed in Dawson v. The State, 33 Texas, 491. As applicable to the facts and circumstances of the respective cases cited, the principles enunciated in the three first mentioned will not be controverted or denied. Appellant’s counsel combats the conclusion reached in Dawson v. The State, and therefore it is unnecessary to discuss that particular case.

We are of opinion that the question here raised, if necessary to be settled on precedent authority, must be investigated in the light of elementary principles, and adjudicated upon well-established and fundamental rules of statutory construction. To begin with, it is a fundamental rule that repeals by implications are not favored in law. Thouvenin v. Rodrigues, 24 Texas, 468 ; Napier v. Hodges, 31 Texas, 287. To constitute the repeal of a statute by implication, the new statute must cover the whole subject-matter of the old one, and prescribe different penalties. There must be an irreconcilable repugnancy between the two acts, and the repugnancy must be plain and unavoidable. Cain v. The State, 20 Texas, 370; Kent’s Comm. 466, note b ; 37 Ind. 111, 284. Admit, for the sake of argument, that the provision of the new Code comes up, as insisted,.to the full measure of this standard; there is still another rule which lies at the very foundation, and which is the corner-stone, if we may so term it. of statutory construction, and that is that in interpreting a law the main object to be arrived at is the intention of the law-making power, and the interpretation to be given to the language used to express the intention should be such as to make the provisions of the statute consistent with reason. Bac. Abr., title “ Statute,” 238. “ The object, and the only object, of judicial investigation in regard to the construction of doubtful 'provisions of statute law is to ascertain the intention of the Legislature which framed the statute.” Sedgw. on Stat. & Const. Law, 231. “ Every interpretation that leads to an absurdity ought to be rejected.” Kottwitz v. Alexander, 34 Texas, 691; Mattel's Rules, Potter’s Dwar. on Stat. 128. “Every legislative act must have a reasonable construction.” Am. Rules, Potter’s Dwar. on Stat. 154. “An act is not repealed by implication where the Legislature had no intention to repeal it.” Tyson v. Postlethwaite, 13 Ill. 727.

We are of opinion that it would be inconsistent with reason to hold that the Legislature could have intended, in changing the penalty for murder in the first degree by the adoption of the Revised Statutes, that the statute changing it should repeal the preexisting law, and have such an effect as to operate upon cases already tried, and pending on appeal.

This position is further strengthened by reference to other rules of statutory construction, to the following effect, viz. : “A thing within the intention is within the statute, though not within the letter; and a thing within the letter is not within the statute unless within the intention.” Potter’s Dwar. on Stat. 144 (8). “The real intention, when accurately ascertained, will always prevail over the literal sense of the terms.” 1 Kent’s Comm., side-p. 462; Brooks v. Hicks, 20 Texas, 666. “ It is a rule of construction generally to be adhered to in the construction of constitutions as well as statutes that they operate prospectively, unless thewords employed or when the object in view and the nature and character of the provision clearly show that it intended a retrospective operation.” Orr v. Rhine, 45 Texas, 345 (citing 10 Ohio (n. s.) 588; 3 Ind. 258; 2 Kans. 432; 41 Mo. 453).

In Lyon v. Fisk, where a question analogous to the one we are considering came up for decision in the Supreme Court of Louisiana:, it was said: “Where the revision and formation into a code of the laws and jurisprudence of a country is effected, without a clause of repeal, as was the case with the Code of 1808, we hold the rule of interpretation to be, as in cases of successive statutes, that the law does not favor a repeal by implication unless the repugnance be quite plain; that the Code must be confined to repealing as little as possible of the preceding laws; that although a disposition of the Code may seem repugnant to some of those laws, that disposition must, if possible, have such construction that it may not be a repeal of those laws by implication.” 1 La. An. 444.

And in Wright v. Oakley the language of Chief Justice Shaw is : “In construing the revised statutes and the connected acts of amendment and repeal, it is necessary to observe great caution to avoid giving an effect to these acts which was never contemplated by the Legislature. In terms, the whole body of the statute law was repealed ; but these repeals went into operation simultaneously with the revised statutes which were substituted for them, and were intended to replace them, with such modifications as were intended to be made by the revision. There was no moment when the repealing act stood in force without being replaced by the corresponding provisions of the revised statutes. In practical operation and effect, therefore, they are rather to be considered as a continuance and modification of old laws than as an abrogation of those old and the reenactment of new ones. In order to construe them correctly, we must take the whole of the revised statutes, together with the act of amendment and the repealing act, and consider them in reference to the known purposes which the Legislature had in view in making the revision.” 5 Metc. 406 : The State v. Brewer, 22 La. An. 273.

Again, statutes in pari materia and relating to the same subject are to be taken and construed together, because it is to be inferred that they had one object in view, and were intended to be considered as constituting one entire and harmonious system. Taylor v. The State; 4 Texas Ct. App. 169 ; Napier v. Hodges, 31 Texas, 287 ; 1 Pasc. Dig. Dec. 637, and authorities cited.

In Smith v. The People, the Court of Appeals of New York declare that “ a statute should nq>t be so construed as to work a1 public mischief, unless required by words of the most explicit and unequivocal import. (Citing The People v. Lambier, 5 Denio, 9.) In'the construction of statutes, effect must be given to the intent of the Legislature whenever it can be discerned, though such construction seem contrary to the letter of' the statute. That" intent must be primarily sought in the language of the statute, and if the words employed have a well-understood meaning, are of themselves precise and unambiguous, in most cases no more can - be necessary than to expound them in their natural and ordinary sense. The words in such case ordinarily best declare the intention of the Legislature. 11 Cl. & Fin. 86 ; 3 Seld. 97 ; 1 Kern. 593. These rules are elementary, but it is equally well settled that words absolute of themselves, and language the most broad and cotn.prehensive, may be qualified and restricted by reference to other parts of the same statute in which they are used, and to the circumstances and facts existing at the time and to which they relate or are applied. * * * If, in reading a statute in connection with other statutes passed at or about the same time, a doubt exists as to the force and effect the Legislature intended to give to particular terms, — that is, as to the meaning which it was intended they should bear and have in the connection in which they are used, — it is also competent to refer to the circumstances under which, and the purposes for which, a statute is passed, to ascertain the intent of the Legislature. The ground and cause of the making of a statute explains the intent. Com. Dig. 11. * * * Again, statutes enacted at the' same session of the Legislature should receive a construction, if possible, which will give effect to each. They are within the reason of the rule governing the construction of statutes in pari materia.” 47 N. Y. 330.

And in Austin v. G. G. & S. F. Railroad Company, it was held by our Supreme Court that“ laws relating to the same subject,, enacted during the same session of the Legislature, are to b.e construed together, and are ordinarily to be taken as.parts of the same act.” 45 Texas, 234.

Now,, in applying these principles to the question as raised in the case under consideration, we find the circumstances, attending the adoption of our Revised Statutes were these : The act adopting the Penal Code and Code of Criminal Procedure was presented to the governor for approval on the 27th and the act adopting the Civil Statutes on the 28th of February, 1876, and both became a law without his signature on the seventeenth day of March, 1879 ; the former to take effect the 24th of July, 1879, and the Civil Statutes to become operative the first day of September, 1879. In point of fact, the last legislation with reference to the Revised Statutes was the adoption of the “Final Title,” “ General Provisions,” p. 718, which is intended, as far as practicable, to apply as well to the Codes as to the Civil Statutes. If not satisfactorily settled by the principles of law above enunciated, we hold that the question under discussion is settled by the positive provisions of the sixth section of the “Final Title,” which reads as follows: “ That no offence committed, and no liability, penalty, or forfeiture, either civil or criminal, incurred, prior to the time when any statute, or part thereof, shall be repealed or altered by the Revised Statutes, shall be discharged or affected by such repeal or alteration,; but prosecutions and suits for such offences, liabilities, penalties, or forfeitures shall be instituted and proceeded with in all respects as if such prior statute, or part thereof, had not been repealed or altered, except that when the mode of procedure or matters of practice have been changed by the Revised Statutes, the procedure had after the Revised Statutes shall have taken effect, in such prosecution or suit, shall be, as far as practicable, in accordance with the Revised Statutes.” Rev. Stats. 718.

Having disposed of this question, we will proceed to consider the matters growing out of the conduct of the trial on the merits, which are complained of as error.

1. A very interesting subject is earnestly argued by counsel in his brief, which is not presented in a manner authorizing that we should consider it. We allude to the admission of the confessions of the defendant in evidence. It is urged that counsel was taken by surprise with regard to this confession, because of the fact that the same witness who upon this trial testified that, before the confession, the justice of the peace had cautioned defendant that the confession might be used against him (Pasc. Dig., art. 3127), had testified at the former trial and proved no such fact. And in support of his right to a reversal upon this ground, we are cited to the case of Boxley v. The Commonwealth, 24 Graft. 649, and 1 Hawley’s Am. Cr. Rep. 655, wherein it was held that, “if the testimony of the principal witness for the prosecution on the trial varies materially from that given by the same witness before the committing" justice, who is unexpectedly absent from the trial, the prisoner is entitled to a new trial on the ground of surprise.” Such is not the rule of practice in this State. “ Surprise ” is not one of the grounds for new trial in felony cases, all of which grounds are prescribed by our statute. Pasc. Dig., art. 3137 ; Rev. Stats., Code Cr. Proc., art. 777. With us, “ a continuance may be granted on the application of the State or defendant, after the trial has commenced, when it is made to appear to the Satisfaction of the court that by some unexpected occurrence since the trial commenced, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had ; or the trial may be postponed to a subsequent day of the term.” Pasc. Dig., art. 2193; Rev. Stats., Code Cr. Proc., art, 568. To have availed himself of the surprise, the defendant should have applied for a continuance, or have asked a postponement of the case, to enable him to properly controvert or meet the matter which operated the surprise. Higginbotham v. The State, 3 Texas Ct. App. 447.

No objection was raised on the trial to the admission in evidence of the defendant’s confessions, and defendant cannot now be heard to complain that they were illegal and inadmissible. There might have been much force in the argument of counsel had these confessions been admitted over objection, and the question properly presented for revision. “Although no unbending, universal rule can be laid down by which to determine whether subsequent confessions in a criminal case are admissible when 'the former confessions were obtained by improper influences, yet in each case the inquiry must be whether, considering the degree of intelligence of the prisoner, and all the attendant circumstances, it is affirmatively shown that the effect of the primary improper inducement was so entirely obliterated from his mind that the subsequent confession could not have been in the slightest degree influenced by it; and if there be any doubt on this question, it must be resolved in favor of the prisoner, and the confession must be excluded.” Porter v. The State, 50 Ala. 95; 1 Greenl. on Ev., sect. 221; Barnes v. The State, 36 Texas, 363. But, as stated above, no objection was made and no bill of exceptions saved to the introduction of this evidence. “As far as can be seen from the record, the evidence to which objection is now made went to the jury without objection. That this cannot be done for the first time in this court has become long since too well settled to be the subject of comment, or to require the reference to authority in its support. No reason is assigned, and none is seen, why evidence of the particular character now in question should furnish an exception to the rule.” Johnson v. The State, 27 Texas, 758 ; Brown v. The State, 2 Texas Ct; App. 115; Poe and Robinson v. The State, 32 Texas, 65 ; Smith v. The State, 1 Texas Ct. App. 133; Owens v. The State, 4 Texas Ct. App. 153; Pasc. Dig., art. 3068; Rev. Stats., art. 686.

The question as to whether this confession was freely and voluntarily made was, it seems, twice passed upon in the trial: first by the judge, when he admitted it in evidence, and then again by the jury under'the following charge from the court: “In regard to the evidence of the confession of the defendant, you are charged that you will consider such evidence if you find that one was freely and voluntarily made by defendant after he had first been cautioned that such confession might be used agajnst him ; but if you believe that defendant made a confession but it is not shown to have been freely and voluntarily made, or if it is shown by the evidence to have been made upon compulsion or persuasion, you will reject it from your consideration in making-up your verdict.” Whether it was a question alone for the judge or alone for the jury to pass upon, it is unnecessary to decide, since it seems to have been passed upon by both. Hauck v. The State, 1 Texas Ct. App. 357; Estrado v. The People, 49 Cal. 171.

There is but a single bill of exceptions exhibited in the record, and this was saved to the admission in evidence of proof with regard to foot-tracks made by defendant in Justice Joiner’s office whilst he was under arrest. Just after the discovery of Maj. Munroe’s murder, some parties . present commenced examining for any signs or evidence left by the perpetrator at the house and around the premises. Footprints were found in the house, at a window, and in the peach-orchard, which were measured by the witnesses, one of whom was George Grimes. The portion of his testimony which was objected to on the trial was as follows: “ I saw the same measure applied to a track in Judge Joiner’s office at Bremond. Joiner made the defendant make his track iu the ashes and sand in his office, where a stove had been. The impression made was plain, and it was about the same as tracks made in Munroe’s house. The measure was applied to the footprints in Joiner’s office, and it was the same in every particular, —fitted it exactly.”

It is contended that the evidence was incompetent and inadmissible, because it was evidence which defendant was compelled to make and give against himself, in contravention of the tenth section of the Bill of Rights, art. 1 of the Constitution, which declares that one accused of crime shall not be compelled to give evidence against himself.

This identical question was presented in the case of The State v. Graham, 74 N. C. 646. Rodman, J., delivering the opinion of the court, says: “ The object of all evidence is to elicit the truth. Confessions which are not voluntary, but are made either under the fear of punishment if they are not made, or in the hope of escaping punishment if they are made, are not received as evidence, because experience shows that they are liable to be influenced by those motives, and cannot be relied on as guides to the truth. But this objection will not apply to evidence of the sort before us. No fears or hopes of the prisoner could produce the resemblance of his track found in the cornfield. This resemblance was a fact calculated to aid the jury, and fit for their consideration.” After citing Best on Evidence, sect. 183, and other authorities, the learned judge proceeds to say further: “ If an officer who arrests one charged with an offence has no right to make the prisoner show the contents of his pocket, how could the broken knife or the fragment of paper corresponding with the wadding have been found ? If, when a prisoner is arrested for passing counterfeit money, the contents of his pockets are secured from search, how can it ever appear whether or not he has on his person a large number of similar bills, which, if proved, is certainly evidence of scienter? If an officer sees a pistol projecting from the pocket of a prisoner arrested for a fresh murder, may he not take out the pistol against the'prisoner’s consent, to see whether it appears to have been recently discharged? Suppose it be a question as to the identity of the prisoner, whether a person whom a witness says he saw commit a murder, and the prisoner appears in court with a veil or a mask over his face, may not the court order its removal in order that the witness may say whether he was the person whom he saw commit the crime? ” * * * The conclusion reached is thus summoned up : “ We agree in the opinion that when the prisoner, upon being required by the officer to put his foot in the track, did so, the officer might properly testify as to the result of the comparison thus made. It is unnecessary to say whether or not the officer might have compelled the prisoner to have put his foot in the tracks, if he had persisted in not doing so.” See'this case of The State v. Graham, supra, also reported in full in 1 Am. Cr. Rep. (Hawley) 182.

The question here is essentially different from the one before the Supreme Court of Tennessee in Jerry Stokes v. The State (March 11, 1876), cited by counsel, where a pan of soft mud was brought into the court-room on the trial, and the prisoner was asked in the presence of the jury to put his foot into it, which he declined to do. The reversal in that casé was upon the ground that the prisoner was asked in the presence of the jury to make evidence against himself, and because, the court say, they “ are satisfied the jury were improperly influenced thereby. * * * The bringing in of the pan of mud and the request of the attorney-general was improper, and should not have been permitted by the court.” Stokes v. The State is also reported in 2 Texas L. J. 243.

We have examined this case with great care., ¡and have endeavored to meet all the points made by the able .counsel who .has without fee followed the cause .of this client through ¡two trials rin fihe slower -and two appeals in this court. He has made a most urgent appeal to us upon the law and the facts in the case. We cannot concur with him in his belief that any such error has been committed on the trial as requires that the judgment should be reversed. Defendant has had a fair and impartial trial, so far as this record discloses, and in which his rights have been fully guarded and protected. That he is guilty of the crime of murder, a horrible murder by assassination, prompted to the deed by his lust for the few paltry dollars in the possession of the murdered old man, the court and jury below did not doubt, and we do not doubt, if the record before us, as we presume, speaks the truth of the matter; that he has1 justly forfeited his life by his crime we are equally as well satisfied, and the judgment is therefore affirmed.

Affirmed.