32 Tex. 614 | Tex. | 1870
The indictment in this case ivas returned by the grand jury in the Criminal Court for Galveston county, at its. March term (A. D. 1869). It was founded upon an accusation against -the appellant for the murder of John B. Lockman, on the eleventh day of January, in the year of our Lord eighteen hundred and sixty-nine, in the county of Galveston and State-of Texas. Upon the trial in the Criminal Court, the accused was found guilty of murder in the first degree. A motion was made by the convict for a new trial, which was overruled by the court. From this ruling of the court, and the final judgment rendered, this appeal has been taken, and the cause is now before this court for revision upon the assignment of errors, found in the transcript of the record.
The errors assigned in the record are nine in number, and are substantially and briefly: 1. The refusal of the court to change the venue. 2. Refusal to grant a continuance. 3. The overruling the motion for a new trial. 4. In the charge to the jury. 5. That the jury was mislead by the charge. 6. In receiving other testimony than the affidavits of the applicant, and of two credible persons on the application for a change of venue. 7. The overruling the objection to the introduction of other -witnesses on the consideration of the application. 8. The
It is, and ought to be, a principle in the administration of justice in a criminal cause, where the life of a rational and immortal being is the issue in the investigation, that all the-technicalities of the law may be used, and made available if possible, in its protection and defense, as far as is allowable by positive law. It is a humane principle, not inconsistent with the Criminal Code of the State, and flows from the same fountain in which our criminal law itself has its origin—the common law.
As, by the law, and under its forms, guilt is to be punished; so, by the law, and under its forms, innocence is the more certainly shielded and protected. The strict observance of the rules of law, in all their details, is a high manifestation of civilization. Their disregard always points out a people still in the eclipse of barbarism. Hence, it is necessary to give all due consideration to even the technicalities of the law whenever the life of a fellow-mortal is suspended upon the issues between truth and falsehood, to be determined by judicial inquiry, in mere human tribunals. The full benefit of every technical objection, therefore, which is allowed by positive law, should be extended to the prisoner in the revisory action of this final tribunal to enable him to make manifest, if it be possible, by a re-investigation of his case, his innocence of the crime with which he stands indicted. This is a part of the humanity of the law, which, it is hoped, will never be disregarded by this court, unless imperiously controlled by an inflexible mandate of the written law. It is what is meant by law, administered in mercy. It is not to neglect and disregard the technical requirements of law in administration, but to insist upon a rigid observance of its rules in enforcing its sanctions. And as the
Among the nine errors assigned as having been committed by the court in the progress of the trial, there are only three, the first, second and fourth, (the denial of the change of venue, the refusal to grant a continuance, and the alleged error in the charge of the court,) which it will be necessary for this court to settle in this adjudication, as all the rest are incidentally involved in their determination.
1. Did the court err in denying the change of venue, as a matter of right to the accused, upon his [application, for the alleged causes set forth in the statute ? (See Paschal’s Digest, Art. 2994.) The proper solution of this question is dependent upon the true construction of that article, (2994,) which this court is now called upon, for the first time, to give. A similar provision to the one under consideration was passed by the Congress of the Republic, on the 14th of January, 1841, providing for a change of venue, in both civil and criminal causes, and which was acted upon by the courts, till it was supplanted by legislation on the subject, under the constitution of 1845, in the third section of the schedule of which provision was made for its abrogation by its actual repeal or alteration by the Legislature. By the authority given in the constitution of 1845, the Legislature had enacted, that “ the District Courts may order a change of venue for the trial of any suit, civil or •criminal, under the rules and regulations prescribed by law.” But the Legislature, not having established any rule or regulation, except in the case of the disqualification of the judge presiding, it seems that the District Courts continued to act under the law of the Republic, in civil cases at least, up to the passage of the act under review. That act varied from the present, in requiring three disinterested witnesses to the sup
And although the language of the. constitution is mandatory, saying that the Legislature “shall provide for a change of venue,” it is at last only permissive and admonitory. For, by what sanctions can the duty be enforced ? It is left to the will of the Legislature, who are chosen by the people; and if the people, through their representatives, desire no such change, how can it be claimed as a right ? The change of venue is not a right to be claimed by the citizen, but it is a mere incident of the civil institutions of a country, and is a grant of the aggregated mass of the population, in its discretion, with whatever limitations it may choose to prescribe, in the regulation of its civil polity, to the individual citizen; and can only be enjoyed upon the terms upon which the grant is made. The
By the act of the 22d June, 1846, and the then existing law of the Republic, it -was left entirely to the discretion of the District Courts to determine both the causes and the methods of the change. It was a discretion which this court has no right to undertake to control.
In Art. 2994 the grounds or causes which may be assigned for a change of venue, are defined in the statute. If they exist the party is entitled by law to a change. The great prejudice of the community, or a combination of influential persons, against the accused, are legal and sufficient causes for the change. The allegation of both or either of these causes by the affidavit of the party, supported by the affidavit of two
The question' of continuance, also, involves matter of discretion in the court. But this is a discretion which is fixed and circumscribed by well defined rules. In this case it is a legal discretion. When those rules are transcended, or violatedr there is something which may be made tangible and appreciable to the understanding; and this court is endowed with authority to modify, or correct, the resultant wrong or injury. If there was error in refusing to grant a continuance, the party,, by failing to take a bill of exceptions, has not placed himself in a position to avail himself, in law, of the advantage of such an error. It is needless to quote the decisions of this court in-support of this rule. The current is uniform in civil causes ;■ and when a party does not except to the rulings of the court,, if there be error, it is considered as waived. So, by the Criminal Code, a party may waive all errors, except a trial by jury.. If, however, in a criminal case, and especially in a capital felony, enough should appear in the record to evince a case of doubtful guilt, this rule ought not, by any means, to be held, inflexible, at the peril of innocence.
It is urged by the very able and ingenious counsel for the-
There are three grades of felonious homicide defined by the* Criminal Code: murder in the first degree, murder in the* second degree, and manslaughter. Each of these offenses has a separate and different penalty annexed to it. Every felonious homicide that is committed, is either manslaughter or murder; but whether murder of the first or of the second degree is the difficult and embarrassing question in the practical administration of the criminal law. If the homicide is committed with express malice, it is murder in the first degree. If with merely implied malice, it is murder in the second degree. The distinction between manslaughter and murder, whether of the one degree or of the other, is obvious enough. But the precise line of demarkation between murder of the first and murder of the second degree, as developed by acts, manifested in the evidence, seems in many cases to elude the sagacity and penetration of most jurists as well as lawyers. Under our system, the difficulty of detection, in some of the various phases of criminal homicide, stands confessed. In all cases of murder, malice is a necessary ingredient. Malice is but a wicked and evil state, or frame of mind, towards another; a mental emotion, aroused and awakened by some motive of real or imagined wrong; or of some personal benefit, or advantage to be gained, fostered and cherished in moments of coolness, sedateness and deliberation, and which prompts to action, and seeks its gratification in the destruction of its intended victim, whenever a favorable-conjuncture of circumstances may present itself. It is likewise to be implied in all cases of homicide, and its existence is always presumed, till the facts, developed by evidence, show that the act of killing was in sudden passion, from an
The other errors assigned are all embraced by the principles relied upon and the reasoning used, in disposing of those discussed, except the ruling of the court as to the competency of a juror, which the accused was compelled to challenge peremptorily, and also the exception to the oath. The court can not regard the objection to the ruling of the court upon the competency of the juror, as a valid one, unless the accused had been thereby compelled to accept an objectionable juror, after the exhaustion of his right of challenge, if or does the court require the force of the obligation in regard to the oath. In the minutes of the court, it appears in the recital of the historical progress of the investigation, that the jury was duly sworn, and in making that recital the record simply states the object and purpose of their being sworn, which was the real object and purpose, as stated, for which they were sworn, and was not intended to set out the oath in liceo verla. If or was it neces
By the aid of the lights afforded by the arguments of the attorney general and the learned counsel of the prisoner, which were conducted with unusual and signal ability on both ■sides, the court, duly impressed with the solemn responsibility of its position, in having even an official agency in settling, in any degree, the worldly destiny of a fellow mortal, feels some assurance of confidence, however, that in the settlement of the points raised in the record, correct conclusions have been arrived at. Under a conscientious conviction of the truth and correctness of the principles of law relied upon, and of a sense of obligation to society and to good government, The court is ■constrained to withhold the new trial sought by this appeal.
The judgment of the Criminal Court of Galveston county is therefore affirmed, and remanded for the sentence of the law to be pronounced and executed.
Affirmed.
In full consultation this application has been ■carefully considered. From the gravity and the solemnity of the interests involved, it was not hastily, and without due reflection, disposed of. The zealous argument of counsel, and the urgent appeal to the court to reconsider the law applicable to the facts of the case, have prompted a calm and deliberate re-examination of the grounds upon which the decision of the court was based; and after the most dispassionate scrutiny of the law and the facts of the case, and of the conclusions arrived at in the opinion already delivered, no such error is found as would warrant the court in granting the rehearing which is ■asked. It is therefore refused.
Rehearing refused.