Golden v. State

32 Tex. 737 | Tex. | 1870

Lindsay, J.

In all cases of misdemeanor, when the defendant appeals from a judgment of conviction, he must either enter into a recognizance to appear before the District Court from term to term, to abide the decision of the Supreme Court on the appeal, or pay the fine, or go to jail. Ho judgment, in a case of misdemeanor, is authorized to be brought to this court by a writ of error. Such a method is neither provided for in the constitution nor by statute. When the recognizance is entered into, it suspends all further action in the District Court until the appeal is disposed of in the Supreme Court. If the defendant fails to enter into a recognizance before the court, after notice of appeal, and fails to pay the fine, the order of the court commits him to its ministerial officer, the sheriff, who, at any time (see Art. 2747, Paschal’s Digest,) is authorized to take from him a bail bond, in the place of the recognizance, to appear before the District Court, from term to term, to abide the decision of the Supreme Court. The bail bond in this case being taken by the sheriff, though seemingly in response to a petition for a writ of error, a proceeding not warranted by law, is yet a sufficient compliance with the requirements of the statutes upon appeals in a misdemeanor case, to entitle the defendants to be enlarged. The manner of doing what the law required was irregular, but at last it has attained the substantial objects of the law, and the appeal should not, therefore, be dismissed for this mere irregularity, unless it operated to defeat some of the positive provisions of the statute. This-it does not do.

This was an indictment against the appellants for the offense of adultery, one of the parties being married, and the other single. The indictment makes the proper allegations to let in proof to establish the commission of the offense. A statement of facts is not contained in the record, so that this court can not know whether there was such evidence adduced as ought to have convicted the parties. But from the reasons filed upon the motion in arrest of judgment in the District Court, it appears that exceptions were taken to the indictment, because, as it is affirmed, it does not appear from the indictment that it was presented in the District Court of the county where the cause was tried, nor that the grand jurors were elected, tried, impanneled, sworn, and charged in that court; nor that it was the act of the grand jury. These are exceptions to the form of the indictment, and may be disposed of with the remark, that it is presumed the District Courts all keep minutes of their proceedings, showing historically the progress of their business, which it is not necessary to incorporate in every procedure which may be taken during its term. The fact of the presentment of an indictment by a grand jury, in open court, is always entered upon the minutes of the proceedings of the court. Hence, in Art. 2868, Paschal’s Digest, it is provided that “ no-objection shall be heard by motion, plea, exception, or in any other manner to an indictment, on the ground that the grand jury finding the same was not legally constituted.” Hone of these things need absolutely to be set forth in the indictment in any other manner than as required in Art. 2863; that, in the name and by the authority of the State of Texas, the grand jurors who were impanneled to inquire for the body of the county in which the trial takes place, presented the parties by name, signed by the foreman, with having committed the offense of adultery on a particular day, in the county in which they were impanneled and sworn to inquire, anterior to the presentment of the indictment.

The court can not well see how the indictment fails to comply with the required forms of the statute. And as to the -exception to the substance of the indictment, that it “ charges, no offense in plain and intelligible words,” it would seem that there could he no misapprehension by any one of the import -of the language, “ E. Griffin Golden and Jemima Scott did, in said county and State aforesaid, on or about the 15tli of February, 1868, commit adultery by living together, and cohabiting, or having carnal knowledge of each other, at divers times, at and before the time aforesaid, in said State and county—he, the said E. Griffin Golden, at the time of committing the adultery with the said Jemima Scott, being a married man, and his wife,-, then living.” It does seem to the court there can be little difficulty in understanding that language.

The judgment of the court below is affirmed.

Affirmed.