122 S.W. 565 | Tex. Crim. App. | 1909
This appeal is prosecuted from a conviction of rape had in the District Court of Donley County on the 12th day of January of this year, in which judgment the punishment of appellant was assessed at confinement in the penitentiary for a period of six years.
The Assistant Attorney-General moves to strike out the statement of facts for the reason that same is made up wholly of questions and answers, and is, in fact, a literal transcript of the stenographic notes taken on the trial of the case, and not in accordance with the law, which, in terms, prohibits a statement of facts from being so made up. We have heretofore held, in accordance with this motion, *271
that such a statement of facts could not be considered. Essary v. State, 53 Tex.Crim. Rep.; Hargraves v. State,
In the absence of a statement of facts there are, as we believe, but few questions so presented that we are authorized to consider them. There are, however, some matters which are so presented that we are called on to decide them.
1. The original indictment was returned in the District Court of Potter County, and was some time thereafter transferred on change of venue by the court of his own motion to Donley County, where the case was tried. This action of the court, we infer, was taken under the authority of the Act of the special session of the Twenty-Fifth Legislature, General Laws, p. 16. This action of the court was at the time properly excepted to, and is so presented that a review of the court's action is required. Appellant challenges the validity of this Act of the Legislature insofar as it can be held to apply to this case, because, as averred, same is void for two reasons: First, because it is violative of article 3, section 35 of the State Constitution in that the caption of the Act only states one subject: that of fixing the venue, while the body of the Act attempts to fix the venue, and also provide for a change of venue; and, for the further reason that said Act is violative of article 3, section 36 of the Constitution, in that same does not refer to or re-enact any of the statutes with reference to the change of venue. The caption of the Act is as follows: "An Act to fix the venue and regulate the proceedings in prosecutions for rape." The validity of this statute, in general, has been sustained by this court, notably in the cases of Mitscher v. State, 53 S.W. Rep., 627, and Griffey v. State, 56 S.W. Rep., 52. These cases and the validity of the Act in general were thoroughly reviewed in the recent case of Dies v. State, 56 Tex.Crim. Rep., 117 S.W. Rep., 979, and were expressly approved. However, the particular questions raised here are not, in terms, presented in the cases above referred to. We do not believe, however, that the act in question is void for any of the reasons named. Recurring to the first objection urged, it is well settled that a liberal construction will be applied to an act of the Legislature in determining whether or not it violates this section of our Constitution. Joliff v. State, 53 Tex.Crim. Rep.; Breen v. Ry. Co.,
2. There are contained in this record 55 bills of exception. In the absence of a statement of facts there is only one matter which we feel we are authorized to pass on. That is raised by appellant's thirtieth bill of exception. With a view of assuring accuracy and to present the matter so it will be readily understood, we copy entirely both the bill and the court's explanation of same, as follows:
"After the defendant, Hood Brown, had by his own counsel been placed on the witness stand, and after many and repeated references had been made to a previous trial of this case in Potter County at the county seat in Amarillo, as will be more fully shown by an inspection of the record in this case, the district attorney, H.S. Bishop, purposely and deliberately propounded to the defendant on his cross-examination and without any effort to show the disappearance of any witness or any material change in the testimony, on the former trial and on this trial, the following question by him was asked: `This is the first time you have testified in this case, is it not?' The answer being `Yes, sir.' The question and answer being propounded in such a short time and the answer elicited in such a short time that the defendant's counsel had no opportunity to object thereto except as heretofore shown, but instantly and immediately after the propounding of said question and while said answer was being elicited counsel for defendant arose in their seat and said to the court: `If the court please, we object to the question and the answer for the reasons that it is a comment on the failure of the defendant to testify in the case before,' whereupon the court remarked: `Gentlemen *273 of the jury, you will not consider that remark, question nor answer, I have ruled it out.' Counsel for defendant then stating that they wanted the bill to show that the question was asked in the presence of the jury and answered, to all of which proceedings, questions, answers and observations the defendant then and there in open court objected as hereinbefore shown, and he here and now says that the same was knowingly and willingly propounded to him in defiance of and in the face of article 770 of our Code of Criminal Procedure, and that without reference to the court's observations that under the facts in this case, as heretofore shown, it was an allusion on the part of the State's counsel to the failure of the defendant to testify to the great and irreparable prejudice in this case of the defendant, and he asks the court after examining this bill to allow the same and order it filed as a part of the record in this case which is here now done."
"Approved and ordered filed as a part of the record in this cause, with this explanation: `I have no recollection of any reference being made to a former trial of the case in Potter County, except that the counsel for defendant, on cross-examination of the witness, Annie Womack, asked her something about her testimony on the trial of this case in Amarillo immediately after the objection was made as set out in the bill, the court in very forceful and emphatic language withdrew the matter from the jury and directed them not to consider the question and answer of the defendant for any purpose. The remarks in the bill as to the purpose and deliberateness of the district attorney in asking the question I think is more the imagination of defendant's counsel in preparing the bill than the facts would admit.
"I do not think the question was asked for the purpose of prejudicing the jury against defendant, and I do not think that it had one particle of effect on them. It was merely a slip of the district attorney.'"
While the court's explanation modifies to some extent the statement contained in the bill itself, we think these facts undoubtedly appear, considering both the bill itself and the court's explanation, first, that there was and had been a reference or references made to a former trial of appellant on this same charge; second (pretermitting any discussion as to whether purposeful or deliberate), the question itself assumed and implies of necessity and by obvious inference that there had been another trial of the case at which appellant would have been permitted as he had the opportunity to testify; third, that proof was made by the State that he had not testified except upon the trial then in progress; fourth, that these proceedings were had over the protest of appellant's counsel, and, fifth, that the court, as stated, in forceful and emphatic language withdrew the matter from *274 the jury and directed them not to consider the question and answer of the defendant for any purpose. So that the question recurs whether under these circumstances, in the absence of a statement of facts, we may and should consider this bill, and whether so considered the matters referred to are grounds for reversal.
Article 770 of our Code of Criminal Procedure provides that, "Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause." As stated in the recent case of Hare v. State,
For this error the judgment is reversed and the cause is remanded.
Reversed and remanded.