*1 65 Texas Criminal provisions the of article 676 of White’s Penal Code. We are of opinion of this section should provisions have been in the given That charge. reads as article follows: “When the homicide takes place prevent murder, maiming, disfiguring castration, the weapons if or means used party attempting or murder, committing maiming, or castration are such as disfiguring would have been calculated to it produce result, is to he presumed that the person them using designed inflict For injury.” collation of authorities see Branch’s Crim. Texas, Laws of 476. section Mr. Branch states the tersely proposition this way: deceased is “Where about to attack or is ad on defendant vancing with a deadly weapon, the law presumes deceased intends to kill defendant, and where deceased is making about to make an unlawful attack, and is so armed and his is purpose it any way doubtful, reversible error to fail charge deceased about to was attack or was on advancing defendant with deadly weapon, law presumes he intended to kill defendant or do him serious bodily injury.” King State, Texas Crim. App., 277. In that case the deceased was defendant pursuing with a pistol. State, Coopers 48 Texas 36, Crim. Rep., was witness prosecuting on defendant advancing with a In v. State, knife. 48 Texas Ivory 279, Crim. Rep., the injured party was accused. advancing v. State, Pierce 21 Texas Crim. App., In Teels v. State, 531, the Rep., injured seized party The in that pistol. given the standpoint of apparent as it danger, v.Ward 30 Texas State, In Crim. Hall v. 43 Texas 479, Crim. injured party was with a In advancing pistol. v. State, Cochran 422, Texas Crim. App., injured party with a advancing billiard cue. Jones v. 17 Texas Crim. App., 602, the accused was attacked with an axe. In McMichael v. State, 49 Texas 422, Crim. had drawn a injured party pistol. Hudson v. 59 Texas Crim. Rep., S. W. used was a weapon knife. In Polk’s Texas Crim. Rep., the attack was made with a loaded These are a sufficient quirt. number cases, we think, and certain that the court apparent make should have with charged reference of article provisions supra. judgment reversed and cause is remanded.
Reversed and remanded. Landry. Emmett February No. 1220. Decided 1.—Contempt—Witness—Constructive Contempt. now be said to law that the rules ap- settled of evidence law, plicable and and punish are those of the criminal required beyond doubt. Harper offense is a reasonable Prendergast, Judges, concurring. Ex Parte 1912.] 2.—Same—Burden of Proof—Reasonable Doubt. *2 to assume contempt proceedings, the In criminal presumption of innocence proof, and to overcome the
the burden of Judges, con- Prendergast, not Harper and exclusion of a reasonable doubt. curring. —Same—Affidavit—Pleading—Prima Pacie Case. contempt proceedings, prerequisite is a that an In criminal contempt made shall he the basis for charging the essential elements of such affidavit must and such an state prosecution and trial of the alleged when the contempt; especially this is prima case of facie of the court. contempt was committed out of Court—Case Stated. Process of law—Order 4.—Same—Due contempt that was the relator had at- alleged constructive W’here pending, in a criminal cause then procure a State’s witness evade tempted the upon proceeding and was no affidavit which the witness, showing that was issued for said contempt predicated, was thereof, etc., knowledge proceeding was based that relator had and issuing of commanding the notice to relator to show upon an order of court contempt, did set and not out the essential facts why he law, the same was not due elements of the and and could not proper proceeding. serve as the basis Harris County.
From habeas release from un- corpus asking Original proceeding, custody contempt proceeding, fining defendant for con- der commitment awith witness interfering case then pend- structive and three confinement $100 in the days fine county ing; penalty, jail. the case. states opinion C. and Elmo Barkley and K. Johnson Roy Johnson and
Mar sene Johnson, question On the of constructive contempt: for relator. 656, and authorities cited Lake, Rep., Texas Crim. in opinion. parte Lane, and Attorney-General, Assistant Richard G. Maury, E. Dis C. of inherent On question power for the State. of Dis Attorney, trict etc.: Ex orders, parte Degener, their to enforce Texas trict Courts Crim. Tinsley, Rep., 517; Ex parte Sparks Crim. 42 Texas Crim. State, Rep., force pursuade, or bribe attempting a witness Upon question orders con obeying under process 97 W. McConnal Com., Rep., State, S. French tempt: Ohio, Scott S. W. Hale Atl., White v. State, 15 W. White, 824; McCarty 374; 2 111 N. W. Bishop Law, 259; Crim. Emery Cases, 146. Thatcher’s During the Presiding trial of Judge. Sam Webber"in
DAVIDSON, under a County, Court of Harris of cattle District the Criminal and the State’s witness among other theft, things, E. Chriss C. if asked him he would $500 had take and that this testified Eeports. 65 Texas Criminal leave that county; stating Chriss would accept he, amount leave county, applicant, would the witness’ pay him way give Beaumont reference could he em- get arrival at ployment upon his point. This conversation, Chriss testified, between himself happened and applicant with no one else testified present. denying act, that he Applicant word “by or sign, time, made Chriss gesture, any any proposition leave also He denied intimated him that county.” having he desired him to offered him county any leave the never sum of for that money other inducement. stated purpose any He had a conversa- about the Webber “at tion with Chriss the instance of old man Webber, father of who was tried Sam-Webber, theft, cattle to ascer- Sam, tain his son Chriss wanted why to turn him up.” At time at request one of Sam another Webber’s attorneys *3 to at said call the office of requested Chriss attorney. This occurred the trial Sam of Webber. Chriss did shortly call, though their he consented to do. conversation During applicant informed to friends Chriss that “Webber wanted make with him.” Chriss at 3 see Webber’s counsel o’clock p. m., to but' did promised not do so. stated to in the applicant Chriss further conversation that “there this, said I do for but he is can Webber worth nothing six hundred hundred dollars, said five dollars at all, he never to Webber, convict is hound to convicted and if I there he if up be and Webber go will I he willing hundred dollars will give get six out of me the way.” about to Arkansas going He also where he something said had a friend. stated to that he had been out applicant He money already be was afraid he arrested. going and Chriss’ case evidence in the theft cattle with constituted him Webber principal and he tes- Webber. against State’s evidence The turning tified testimony other witnesses corroborated to Chriss’ applicant regard hundred dollars from six receiving expectation Cattlemen’s As- in the Webber case. Chriss his services denied sociation for making any the Cattlemen’s the effect that Association was statement going dollars, as testified other hundred witnesses. This him much six pay an issue between appellant has stated to been between them regard to of- what occurred Chriss as to county. to induce Chriss leave evidence of fered bribe therefore, be trial, only could for the Webber purpose Chriss on a witness testified in the trial of applicant impeaching the Webber case. this statement under the testimony be observed It will criminal constructive A contempt. would .be both
Chriss this dignity and as is directed criminal vol., law. 4 Ency. Pl. & dignity the majesty well against 27 Texas Crim. 628; 766-768; Robertson, Ex Pr., parte pp. S., Ed., 221 U. Co., L. p. Range Buck & Stove v. Gompers now be said to be down and the settled laid is further p. 191%.] to punish to the proceedings applicable rules evidence law that law, preponderance mere are of criminal also those in accordance accused, to convict the being insufficient evidence offense cases, of the alleged in criminal rule general with Pr., p. Pl. & Ency. doubt. Vol. a reasonable beyond ; Minn., 433 1; Kellom, 52 Benbow v. 769; Buckley, Eq., J. 61; Parkhurst, N. H. v. Maginnis N. Young, Eq., v. Holl v. 325; Probosco 134; H., Bettis 55 N. 433; Roborg, (N. v. 3 John. 628; Jackson Probosco, J., 5, Virgil, N. J. L., N. 42; Butler, v. Denbow, 49 Hun. Ross 138; (N. Y.), v. Gage Y.), Y., 237, 64 N. Davis, (N. 6 Hun. Y.), Sutton (N. Y.), Hun. v. Cunningham, 10 Lea State (Tenn.), Harwell Judson, 3 342; In Va., Va., Ralphsnyder, State W. 961; 1 Hughes 53 Fed. 63 Fed. Rep., S.), (U. Blachf. the settled that every It is also now S., presumption U. is to be favorable to innocence held the party charged
intendment of Smith, Y. Pot Sup. Cr. (N. Weeks Abb. contempt. Ct.), with Ct.), Merritt, Pr. Y. Slater v. (N. How. Law, Sup. ter Hutchinson, (U. S.), 4 Blatchf. Woodruff Y., Whipple N. Co., 45 Fed. 53 Fed. Bloomfield Gravel Mining North S., 418 (55 v. Buck Stove & Range 793. In U. Gompers said: “If then, it was as the Court of 797), Appeals.correctly Law. Ed., im- held, the sentence was it could have wholly punitive, been properly in a instituted and tried as for only proceeding posed as to the character has been The question proceedings, generally whether raised Court determine could Appellate in the *4 v. error or on Bessette B. appeal. Conkey writ of reviewed 24 324, Ed., 48 L. 665. 997, Supt. may 194 U. Ct. But it S., For, much than mere matters of practice. more notwithstand involve elements in many similarity in ing procedure punishment, between are some differences the two classes which proceedings, and constitutional de substantial Without rights privileges. involves it what the rule in in may contempts, civil is certain that ciding for the defendant is contempts criminal presumed jxroeecdings to be reasonable doubt beyond innocent. He must be proved S., himself. 116 v. U. testify against Boyd can not compelled .and 6 63 Ed., 524; 29 L. U. S., Sup. U. Ct. S. v. Joseph, 40 Am. 951; Davis, 100; E., 331; 50 W. S. 14 Fed., State v. Va., & Co., 7 282; Biss., 529; v. R. Fed. Crim. Ohio M. King R. 482; Adams, 7800; No. Drakeford v. Fogarty, Fed., Cases Sabin v. 70 25 Ga., 724, 98 833.” The authorities cited would seem all suf E., S. in a action or contempt to leave that criminal criminal ficient clear is assume the burden of State or the prosecution rea innocence the exclusion of the overcome presumption demanding punitive sonable doubt. State was punish In this that inflicted was three days ment shows penalty judgment $100. confinement a fine of jail and. 65 Texas Criminal
444
2.
It is
that it
ais
urged
in criminal
that an
prerequisite
contempts
the essential
charging
element's of such
shall be made
contempt
as a basis for
and trial
prosecution
case.
If
is cor
rect in this
that
proposition,
is
an affidavit is
then it is
necessary,
correct that such affidavit
unquestionably
should and must state a prima
facie case of
4
Ency.
Pr.,
Pl. &
vol.,
780; Ex
Min,
Ah
parte
Cal., 198;
77
Ex
Yen
parte
Yon, 19
Fong
500;
Pac. Rep.,
Whitten v.
36
196;
McConnell
46
v.
Ind., 298; Wooland v.
State,
U. v.S. at Ed., L. at page 221 U. Buck & Range p. Stove court, of in this case. affidavit made or presented There no he why for to show cause volition, his issued process applicant own in his order of on the statement should not be held in court court in the above case that “it been made known having the had evasion Landry attempted procure the Emmett witness Chriss,” etc. a basis the witness C. E. As this court the order in entered the minutes up following for judge the court: District Court the Criminal “The State Texas, of Harris County Ho. Term, March Webber. Sam in the trial of known to the court the above “It been made having attempted Emmett Landry procure the witness E. Chriss, this, of this witness C. evasion of the court duly had been that after the of this court served upon E. the above numbered and styled State’s witness C. Chriss in case that E. and tried to induce said C. said Chriss Landry attempted of this disobey the process leave county court “WHEBEFOBE, the clerk of this commanded to hereby C, him said E. Landry commanding appear issue notice the 8th day April, this o’clock Saturday, cause, a. should not be held any can, why m. he of this court. hand A. D. 1911. day April, 7th my “Witness Bobinson,
C. W. of the Criminal District
Judge Harris Texas.” County, Court of District the clerk of the Criminal Court this order Hpon sheriff him sum- commanding which given issued a notice District Court of be and before the appear mon There was affidavit order. no to the above Harris obedience County based contempt was filed in the case and whole predicate An the court’s order. upon of any a pleading order is not The quoted the contempt proceedings. what conclusion judge’s entry character. is but the *6 learned the trial the case. during, of Webber That order constitutes the only basis proceedings subsequently inaugurated If deemed against it could be to thus institute applicant. legal con- the is deficient order on its face tempt proceedings, wholly in stating the as essentials of such is pleadings required to form the predicate for trial The order contempt. of constructive does not that the state if it any knowledge fact, fact, had was a that applicant Chriss had ever served nor does with set' out that such process, been process case, was ever the Webber issued Chriss in in- except the most ferential It not state nature does or the manner. the character of process. state, order not or even Said does that' allege indirectly, appli- cant had the issuance or service of any knowledge of on Chriss. process show, It does not nor does it attempt do, how the was in- judge formed, or his how that had acquired knowledge applicant sought the induce Chriss evade than the mere that recitation he learned this the during Webber is trial. There record, or no sworn statement the affidavit, such as is necessary If law. of his own required motion, without such af- by the fidavit statement, attachment, or issue sworn order of the _ judge the must, in take that event, place necessary pleadings alleging against must, “an accusation” accused. charging therefore, It as the sworn explicit pleading be to be ex- necessarily must set out all essential facts and It elements the al- plicit. If had not issued contempt. in the Webber leged not applicant could be disobedience. If the guilty seeking induce issued aware of not its issuance or ser vice, still he could not be adjudged order contains of these elements which are judge "none essential necessary Col., 343; an “accusation” him. 19 Ga., 272; and authorities heretofore cited. pleadings, is, Whatever the pleadings necessary to such dereliction, a criminal must accuse citizen state pleadings case and this is held prima facie all the enough show authori therefore, that the order is, ties. court is clear not sufficient against applicant and it is even more predicate fails order wholly that the state elements a plead of such patent or the basis as could would form for the arrest and ing trial of is to punishment citizen where This much has be result.. said to the order in not been can form the question predicate or basis for subsequent contempt proceedings; such process, being must instituted sworn criminal, be or statement when the immediate alleged contempt view or committed presence Wood, Mich., court. page rule is thus stated: "But not committed in its those immediate view must the court brought affidavit of who wit person them, nesses have and the knowledge them rule is made based affidavit, an either attachment issue upon the accused 1912.] *7 a should not be cause, punished certain place, why time “The cites authorities many
for the Wood case further support proposition above support proposition. 244; 126 Batch Rickert, Cal., cases: Ex parte cite following we 412; Col., 252; 42 Thomas v. Moore, elder v. 17 Wyatt People, v. v. Col., 254; Ill., 577; 14 v. 57 Saunderson Chaplin People, People, 196; State, 36 State, Ind., 550; Ind., 151 Whitten v. v. State, Snyder 734; Kan., 553; Nickell, Kan., McKenna, 151 In re 47 In re 47 Ind., 618; 46 738; Harmer, Kan., 262; Vincent, Kan., 47 v. In re State Henthorn, Kan., 613; 879; 46 5 Kan. An Blush, State v. Co., Me., 392; v. 49 Murdock’s etc., R. Co. R. droscoggin, Androscoggin 461; Mich., 75; Hall, 2 In re 82 v. 21 Case, Wood, Bland, Verplank 469; Ivis, 478; Rose, Mo., 60 38 Mich., State v. Green Co. v. Minn., Neb., 105; 54 390; State, 626; State, Neb., v. Hane v. 48 Herdman Le 871; Nev., 158; 45 12 State, Neb., v. v. Phillips Welch., Hawthorne 912; 48 Bliss, Div., 606; 23 N. Y. N. App. v. Bradburg Supp., Y. Hill, 236; 6 v. Root, D., 487; v. State v. 5 Love People Adams, N. State, St., Kaiser, 9 v. 20 337; 50; Ohio State Com. v. Snow Oregon, den, 10 v. Can Brewst., 218; Blackwell, 1 v. Rich., State Young non, Utah, 560; Coulter, Wash., 526; 2 25 McClougherty, State v. Va., 416; 33 v. 24 State W. Wilson v. Va., Frew, Territory, Mutual Co., Fed., 1 Hillmen v. L. Ins. 79 Wyo., thus stated: The rule is “The statement or affidavit being should show its sufficient facts con jurisdictional, face Ct., Cal., 405; v. Yuba 67 Batchelder v. Co., Supr. tempt. Hodges Col., 252; Rockwood, 42 Moore, People, v. 17 State v. Wyatt Ind., 94; Ind., 49; State, v. 82 Haskett 51 State, Wooland v. Ind., 298; etc., McConnell Jordan v. Walpello v. Iowa, 177; Palmer, Mich., 436; Herdman v. Montgomery Neb., 626; Neb., Cooley Roborg, State Sweetland, Root, D., N. N. State L., J. D., 503; Cannon, Utah, 560; Allen, Wash., State Young Canutt, Wash., State he held Before can committed in person must have due and notice of the legal pro- it is him. 9 ceedings against Cyc., p. as cases col- presented lated as this in note on said Such must be based page. “due on an It takes this to constitute of law.” “He process accusation. nature and shall have the to demand the cause of accusation right him and to have a Bill copy thereof.” section rights, “an of the is not accusation” law. is but the order learned. statement or he has judge something conclusion In order to an accusation against party, constitute pleading, information, must indictment, whether or state an of- complaint form for the predicate fense or the which punishment elements It must ele- must be stated. .contain the distinctly offense ments of the must offense correspond. 65 this, are not necessary. that authorities Without is so elementary This “due guaranty utter want of the constitutional is an section 19. Be the citizen Rights, land.” Bill of law of the criminal, he still is humble, wicked, guaran- entitled ever life, law” his can liberty property teed “due serves as his against illegal prose- taken. This shield guaranty legally not sufficient There cution. We hold the nor authorized. order affidavit or statement of a was no sworn accusing applicant and until this has been is not justified. violation made violation of and is without “due organic It is in law law land.” *8 and is, therefore, discharged conviction is void ordered
from custody.
Relator discharged. PRENDERGAST, udge. HARPER, While not agreeing Judge, J stated, all nor all the reasoning employed, the conclusions we yet in the case. all or concur cases of civil disposition contempt, acts or conduct occur contempt, presence tribunal, of the no statement court hearing writing required, deal summarily with the contemn or. This is the all the If under the decision of courts. conduct or acts occur out tribunal, then the facts must presence side be reduced court, to the some be cases it writing presented should holding this to, others that is not necessary. sworn We think the better civil or criminal, when the does not occur in the practice, court, that written forth hearing allegations presence setting to, should be sworn unless at by the district presented stated, in his official As before torney writing capacity. agree we as the acts and conduct disposition did not occur in and no writ ten statement filed court. or presented Myers v. The John State. February 1610. Decided
No. Rehearing denied March Jury Law—Separation Jury. 1.—Burglary—Jury Where, appeared burglary, appeal it from the record upon trial jurymen yet try accepted four who had not been sworn to parties had separate, the summons of other pending and were thereafter allowed nothing improper such jurors complete panel, shown error, although practice is the better separation, there was no reversible State, 26 Following Bailey Texas Grim. separation. permit Criminal Procedure. Code Article App., 706.