So outrageous had become the wrongs inflicted upon our citizens by means of forged land titles that the framers of our last Constitution incorporated into that intvument the 6th section of article 13, which provides that “ the Legislature shall pass stringent laws for the detection and conviction of all forgers of land titles, and make such appropriations of money for that purpose as may be necessary.”
In obedience to this requirement, the Fifteenth Legislature, the first which assembled under the new Constitution, on July 28, 1876, passed an act entitled “An act to provide for the detection and conviction of all forgers of land titles,” and, on account of the “imperative public necessity” for its immediate operation and execution, declared that it should go into “force and take effect from and after its passage.” Gen. Laws 15th Leg. 59, et seq.
It was known that a large, if not the largest, proportion of such forgeries had been committed and were being committed by citizens of other states — parties who had never resided in the state of Texas; and to reach this class of offenders was a desideratum which induced the adoption of the 5th section of said act, which is in these words, viz.:
“ Sec. 5. Persons out of the state may commit, and be liable to indictment and conviction for committing, any of the offenses hereinbefore enumerated, which do not in their commission necessarily require a personal presence in this state, the object of this act being to reach and punish all persons offending against its provisions, whether within or without the state; and indictments under this act may be presented by the grand jury of Travis County, in this state, or in the county in which the offense was committed, or in the county where the land lies about which the offenses in this act were committed.” Gen. Laws 15th Leg. 60.
To this indictment the defendant filed two special pleas to the jurisdiction of the court, the substance of which may be stated thus:
“1. That defendant is not a citizen of the state of Texas, but was and is a citizen of the state of Missouri, in which' latter state he was, on October 17, 1877, arrested by virtue of an extradition warrant issued by the governor of Missouri, upon a requisition of the governor of Texas, based upon another and different indictment from the one he was called upon in this case to answer, to wit, an indictment for forgery, preferred against him by the grand jury of Limestone County, Texas ; and that the indictment here exhibited-against him was found subsequent to his extradition, and alleged the offense therein charged to have been "committed at a date long anterior to the issuance of the requisition and warrant by which he was extradited.” And' he alleged that to try him on this case, under the circumstances, “ would be a violation of the laws of the state of Texas and the United States, contrary to public policy, in violation of good faith," prejudicial to the enforce*661 ment of the law in extradition cases, in bad faith to a sister state, unjust to the state of Texas, and subversive of what is believed to be well considered, recognized, and established •rights of this defendant, as well as of every other citizen of the United States.
“2. That the offense named in the indictment, if committed at all, was committed whilst defendant was a citizen of, and within the jurisdiction of, the state of Missouri, and not within the limits and jurisdiction of the state of Texas ; and that, under the Constitution and laws of the United States, a citizen of Missouri cannot be tried in Texas for a crime committed in Missouri; and that the law seeking to hold him so liable to trial in Texas is unconstitutional and void.”
To these two pleas the State, through her attorneys, interposed general demurrers, which were sustained by the court. It is contended that the court erred in its ruling, and the correctness of its action is made the first prominent and important question for adjudication in the bill of exceptions, assignment of errors, and in the able and learned oral arguments and briefs both of the counsel for the appellant and of the attorney-general, on the hearing before this court.
The extradition papers and proceedings are not set out in the transcript of the record before us. If not admitted as a rule of practice by the demurrer to the pleas, the facts stated therein are conceded to be true in the argument, and will be so considered in the discussion of the questions raised.
In the 2d section of article 4 of the Constitution of the United States it is provided that “ a person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdic
Most, if not all, the states have passed laws in conformity to, of similar import with, and having for their object the more speedy, certain, and efficient execution of, these laws of the Federal government. For the laws upon this subject, as they exist in the two states immediately interested in the proceedings had in this case, see the General Statutes of Missouri, Title XLVIII, p. 869, ch. 220, secs. 1, 2, and Paschal’s Digest of the Laws of Texas, art. 3342, et seq.
As between nations, similar regulations in regard to the demand of one government upon another for the arrest and extradition of fugitives from justice are usually settled by the express terms of the treaties adopted for that purpose. In fact, as between nations, it is now the American, as well as British, doctrine that there can be no extradition without the offense for which the party is surrendered is expressly provided for by treaty stipulation. The Commonwealth v. Hawes, Ky. Ct. App., April 17, 1878; Alb. L. J., April, 1878.
As between nations, ordinarily a preliminary trial is had before some judge or magistrate, founded upon complaint made under oath, and upon his arrest the party is brought before the judicial officer, who examines into, and hears the evidence of, criminality, “ and if, on such hearing, the evidence be deemed sufficient to sustain the charge,” it is made the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a: warrant may issue for the surrender of such fugitive.
Where the treaty fails to declare a rule of procedure in any given state of case, the established principles of international law, good faith, and comity are appealed to and applied in the determination of all such questions. For instance, without any treaty stipulation to that effect, it'
This doctrine of international extradition is sought to be made available to appellant in this case, and is the principle upon which his first plea to the jurisdiction of the court is based. It is contended that “ it is due to good faith and comity, to the sovereignty of the states as distinct political communities, to the terms of their intercourse with each other in demanding and surrendering fugitives from justice, and to the intent of the Constitution in providing the remedy, that when one state in this way obtains from another the custody of a person, it should limit that custody to the purpose for which it was obtained and which was avowed by it when obtaining it; and hence, when this purpose has been answered, the state demanding and receiving the fugitive should secure to him freedom of departure and return to the state from which he was removed.” It is said, “if this is not the law, it ought to be.”
We cannot concur in the doctrine thus enunciated. The relations between the states, as created by the general government, render their status and intercourse different in most material respects, civilly and politically, from that subsisting between separate and independent nations. And this difference is especially apparent in the difference, heretofore alluded to, existing as to the modes of procedure in extradition matters. As was said by Savage, C. J., in “ The matter of Clark:” “Civilized nations have seen the necessity°and propriety of surrendering fugitives from justice, that they may be tried by the laws of the country in which the offense was committed. This matter has usually been arranged by treaty; but when no treaty exists,
‘6 Had our Federal Constitution and laws been silent on the subject, and no conventional arrangement existed between the several states composing our confederacy, it may be conceded that the practice arising from the comity of nations would be applicable; and, before we would surrender any person demanded as a fugitive from justice, it would be our duty to examine into the facts of the alleged crime, and be satisfied that no reasonable doubt existed as to his guilt. But under our Federal government this matter has been regulated, and we are not left to the uncertainty arising from an inquiry in one state into the particulars of an offense committed in an another. The Constitution of the United States provides that ‘ a person charged in any state with treason; felony, or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.’ Here, then, is the law on the subject—a positive regulation, and tantamount to a treaty regulation — and we are not to resort to the comity of nations for our guidance. Every person who is charged with an offense in any state, and shall flee to another state, shall be delivered up. It is not necessary, as under the comity of nations,
Another and a striking view of the question is this ; In their relations and intercourse, nations are naturally jealous and suspicious of each other; hence the exactitude of their treaty stipulations. Not so with the states. Mutual confidence and trust were the foundation-stones and pillars upon which they erected the Federal edifice, and their expressed purpose in its creation was “ to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to the citizens and their posterity.” It was, at the. same time, further declared that ‘1 the citizens of each state shall be entitled to all privileges and immunities of citizens of the several states.” Art. 4, sec. 11. These privileges and immunities are limited, it is true, to such as are fundamental, but these embrace all the dearest and most sacred of all human rights — the protection of life, liberty, and property. Corfield v. Coryell, 4 Wash. C. Ct. 380.
“ The interest and purpose of this clause was to declare to the several states that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify them, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of the other states within your jurisdiction.” Crandall v. Nevada,
It was the implicit faith and confidence which each had in the other’s honor and integrity in maintaining this guaranty that the life, liberty, and property of her citizen would be protected in any other state to which he might go or be
Suppose, then, as in the case at bar, he is surrendered and extradited, can he be tried for any other offense than the one for which he was extradited ? Where is the prohibition ? Good faith and comity leave that entirely to the discretion of the state which had the right to demand him
Since the able briefs, both of the learned counsel for the appellant and Attorney-General Boone, for the State, were prepared in this case, this identical question here discussed was submitted “in the matter of Noyes,” upon habeas corpus, before the United States District Court for the District of New Jersey, May 27, 1878, and it was held that “ a fugitive from justice, extradited, under the act of Congress, from one state in the Union, on the charge of the commission of a specific crime, can be held by the courts of the state to which he is surrendered for trial for another and different crime.” Nixon, J., delivering the opinion in that case, most pertinently and pointedly remarks : “ But here a court of competent jurisdiction has the custody of a person who is charged with the commission of certain offenses against the laws of the state. The answer to the charge is, that some other person has done a wrong to the prisoner by violating the laws of another state in arresting him without proper authority. In a criminal case this can hardly be reckoned a pertinent response. It is a claim on the part of the accused that his criminal violations of the law are to be condoned by his personal injuries. It is asking the court to suspend its responsible duties, to wit, the trial of offenders against the Penal Code of the state, while the persons charged with the crime are instituting preliminary investigations into the methods adopted to bring them within its jurisdiction. Such a course, for obvious reasons, is allowable in a civil suit between private litigants; but, for like obvious reasons, cannot be, and never has been, allowed in criminal proceedings, where the object of the prosecution
We have been led into this lengthy discussion of interstate extradition, as well because of the general interest which the subject is at present commanding throughout the country, as the earnestness and ability with which it has been argued before us.
We now turn to the'questions raised by the second plea to the jurisdiction, which are that the 5th section of the act of July 28, 1876 (quoted supra), is unconstitutional; and that, under the laws of the United States, a citizen of Missouri cannot be tried in Texas for a crime committed in Missouri.
The constitutional objections are: 1. That the subject-matter of this section is not embraced in, nor germane to, the object expressed in the title. Const., art. 3, sec. 35, 2. Because it is a special or local law. Const., art. 3, sec. 56.
Neither of these objections are tenable. With regard to the first, we might simply content ourselves with quoting
As to the second objection, viz., that it is a special or local law, it will be found that the section does not come within the purview of such laws, as construed by our Supreme Court in Beyman v. Black,
Nor has any constitutional provision been violated by the Legislature in providing that indictments arising under the act might be presented in Travis County, no matter in
“Another thing is, that the locality of the crime is not necessarily in law, or always in fact, in the same county with the personal presence of him who commits it. We have, indeed, seen that to constitute a crime, an evil intent must combine with the evil act; but, though we usually contemplate the intent as existing in the mind, and the mind as inhabiting the body, yet, legally, instead of this the intent follows, and dwells with the act, and this may be where the bodily presence is not. Thus, if a man stands upon shore within a county, and, by discharging firearms, kills another upon the high seas, without the county, he is triable for the murder by the admiralty, which has jurisdiction over the locality where the ball took effect, and not over the place where he stood to perpetrate the crime. And one who poisons another by the help of an innocent agent is guilty of murder in the county where the murder took place. So, a person who puts forth a libel, or threatening letter, or a letter inclosing a forged, instrument, intending to defraud one to whom it is addressed, or a letter making a false pretense to a person who, thereupon, parts with his goods in the county where he receives it, or soliciting one to commit a crime, may be indicted in the county to which it is sent, though he does not go there himself.” And he concludes, from the doctrine thus laid down, “ It follows that a man may commit a crime against a state or county upon whose soil he never placed his foot.” 1*671 Bishop’s Cr. Proc., 2d ed., sec. 53; 1 Bishop’s Cr. Law, secs. 109, 110, 112, 556; The Commonwealth v. Harvey, 8 Am. Jur.; The People v. Adams,3 Denio, 190 ; The Commonwealth v. Smith,11 Allen, 244 .
Upon the other point, the validity of the law in conferring jurisdiction upon the District Court of Travis County, the doctrine, as stated by Mr. Bishop, is thus laid down : “ But if a statute creates an offense which in terms must consist of acts both within and without the state, an indictment will lie in that county within the state in which what we may call the domestic part of the transaction is performed.” 1 Bishop Cr. Proc., sec. 56. This is admitted to be the general rule. It is, however, merely technical (Henderson v. The State,
We are apprised of no constitutional provision which restricts or limits the power of the Legislature in this state from declaring that the cases arising under this act should be tried in the county of Travis.
After the demurrer to the defendant’s two pleas to the jurisdiction was sustained, the case proceeded regularly to a trial, which resulted in the conviction of the accused, with his punishment assessed at ten years’ imprisonment in the penitentiary. During the trial there was scarcely a particle of testimony introduced by the State which was not objected
The three not belonging to the general class are :
1. That the indictment charges that the forged deed purported to be the act of Abraham Barnes, while the proof offered is a deed signed “A. Barnes,” and that there was no proof aliunde to connect Abraham with A. Barnes as being one and the same person. The answer to this objection is that the entire deed is set out in hcec verba; that the deed itself recites, in the description of the parties thereto, that it is the act of “Abraham Barnes, of the county of Cooper, in the state of Missouri, of the first part;” and that the initial letter “A,” in the signature, “A. Barnes,” to the instrument does not contradict or vary the recitals in the body of the instrument, since it stands as well for “Abraham ” as any other Christian name commencing with an “A.”
Beeves’ case is directly in point. The indictment, which was for forging a script receipt, charged that the prisoner forged it “ with the name of C. Olier thereunto subscribed, purporting to have been signed Christopher Olier,” and it was objected that it must necessarily be bad, as C. Olier “ did not on the face of it purport to be Christopher, but might be Charles, etc.” But the court held that the script receipt was not upon the face of it repugnant to the bill, or inconsistent with itself. 2 Leach, 808, 814; 2 East P. C., p. 984, ch. 19, sec. 56; 2 Archb. Cr. Pl. & Pr., Waterman’s notes, 7th ed., 804, 805; 1 Whart. Cr. Law, 7th ed., sec. 607 a.
2. It was objected that, because it was not specifically charged in the indictment, therefore the court erred in admitting proof that the clerk’s certificate of the acknowl*673 edgement to the deed was also a forgery. The answer is that the whole instrument was declared to be a forgery, and, as said before, was set forth hcec verba, including the authentication of the clerk. The certificate was a part, as well as any other portion, of the instrument, and the certificate of acknowledgment was essential to give the appearance of validity to the deed, and necessary for registration purposes, which was another step requisite to perfect the object of the forgery. Henderson v. The State,14 Texas, 503 .
3. It is contended that the court committed a grave error in permitting the witness Stevens, who, with other witnesses, had been placed under the rule, to remain in the court-room and hear certain testimony which was introduced by the State, and with regard to a portion of which he was himself subsequently examined. The manner in which witnesses are to be examined must, in general, be left to the discretion of the court; and it is believed that the discretion thus confided to the court was intended not to be a subject of revision by the appellate court, unless it be made to appear that the discretion has been abused to defeat the ends of justice. Roscoe v. The State,41 Texas, 363 ; Sherwood v. The State,42 Texas, 501 ; Kemp v. The State,38 Texas, 111 ; Treadway v. The State, 1 Texas Ct. App. 668; Goins v. The State,41 Texas, 334 ; Brown v. The State, 3 Texas Ct. App. 294; Jones v. The State, 3 Texas Ct. App. 150; Lister v. The State, 3 Texas Ct. App. 17. In this instance the record does not show that the court abused its discretion, or that any material injury was done the defendant.
All the other objections to the admissibility of the evidence are believed to come within the same general rule, as stated by Mr. Greenleaf. He says: “In proof of the criminal uttering of a forged instrument, it is essential to prove guilty knowledge on the part of the utterer. And to
Upon the. charge of the court there are three points made, which we deem it necessary to advert to and discuss : (1) the refusal of the court to instruct the jury upon the rules of law applicable to the testimony of an accomplice; (2) the charge, as given, defining a reasonable doubt; (3) the failure of the charge to define the crime of forgery.
1. It is claimed that the witness Stevens was an accomplice, or at least a particeps criminis, who was under indictment himself for forgeries committed in connection with
We do not think the witness Stevens occupied such relation to the case as that he came within any of the classes requiring corroboration. He was not, jointly with the defendant, or even separately, indicted for the forgery in question. There was no complicity shown, so far as this particular witness was concerned, as was the case in Davis v. The State, 2 Texas Ct. App. 588; Myers v. The State, 3 Texas Ct. App. 8; Carroll v. The State, 3 Texas Ct. App. 117; Nourse v. The State, 3 Texas Ct. App. 304; Jones v. The State, 3 Texas Ct. App. 575. Nor was he even promised exemption and immunity from prosecution on the indictments pending against him, in the event of his turning state’s evidence in this case.
In fact, so far as this particular case is concerned, there is nothing going to establish, directly or indirectly, his guilty connection, or any connection whatever, with the transaction, either as a principal or accomplice, accessory, or particeps criminis. See Welsh v. The State, 3 Texas Ct. App. 413, for a full discussion of these different relations between offenders.
2. Upon the reasonable doubt the court says, in explanation of its character : “ By a reasonable doubt is not meant a speculative or whimsical doubt; still, you should be so well
In Brown v. The State, 1 Texas Ct. App. 154, it was said “ that the reasonable doubt was such a doubt as fairly and naturally presented itself from the facts which the jury believed to be true; that the rule was that all the material facts which they believed to be true should lead their minds in such a manner to the conclusion, to a moral certainty, that the defendant was guilty, as that they could not reasonably believe otherwise.”
In Massey v. The State, 1 Texas Ct. App. 564, it was said: “ A reasonable doubt, such as would entitle the defendant to an acquittal, need not necessarily arise out of the evidence; it may be the result of a want of testimony sufficient to satisfy the mind.” And in Chapman v. The State, 3 Texas Ct. App. 67, it was said: “A reasonable doubt is that state of case which, after the entire comprehension and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.”
If any further explanation or definition of the “reasonable ■doubt” is necessary, it is believed that these are the most satisfactory which we have seen given. But, as was said in Massey’s case, and repeated in Chapman’s case, in the opinions of this court, “ the term 6 a reasonable doubt ’ is pretty well understood by every man of common sense. It would be difficult to use words better understood, and to define their meaning better than those words do themselves ; ” and, further, that “ if the court would give in charge to the jury the exact language of article 3105 (Pasc. Dig.) of the Code of Criminal Procedure,.the jury would be quite as well in
Before giving in charge the extract above quoted, the correct rule, as prescribed in article 3105 (Pasc. Dig.), was given by the court in the words of the statute. It is insisted that the explanation was not correct, and we are inclined to think that it was calculated rather to confuse and mistify them than to make plainer that which needed no explanation. Still, had this been the only objection to the charge, we might, perhaps, not have considered it of sufficient moment and importance to have required an interference with the verdict and judgment.
3. There is, in our estimation, a graver and more serious objection to the charge, and one which makes it necessary for us to reverse the judgment and remit the case for a new trial. It is the failure of the court, in any portion of the charge, to give the statutory definition of forgery, or any explanation of the nature, elements, and ingredients of that offense, in lieu of such a definition, as would sufficiently apprise the jury of the legal ingredients essential to constitute that crime.
The act of July 28, 1876, under which the prosecution was conducted, does not change or affect the definition of forgery as contained in the statute. Pasc. Dig., art. 2093. Its object was not to define a new offense, or a new class of offenses, but was, as stated in the title or caption of the act, “ to provide for the detection and conviction of all forgers of land titles.” As was correctly stated in the judge’s charge, the first, and in fact the main, question to be determined by the jury was, “ Is the deed set out in the indictment a false and forged deed?” But how were the jury to know whether it was false and forged, unless they were apprised, by appropriate instructions,
As was said in Shanks v. The State, “it is an essential element of the crime of forgery that the false instrument in writing shall have been made without lawful authority. The want of lawful authority to make the instrument in writing is what makes the instrument false. If the instrument in writing is one which the defendant had a right to make for himself, or lawful authority to make for another, then it cannot be false.”
The jury were not instructed or advised with regard to any of these essential matters and things pertaining to the crime of forgery, and to that extent the jury must have acted in ignorance of them. Whether this verdict would have been different had they been so instructed is not for us to inquire. A defendant in a criminal accusation is entitled to- have the jury charged in the law applicable to the case, and it shall be distinctly set forth. Pasc. Dig., art. 3059; Johnson v. The State, 1 Texas Ct. App. 118; Tiner v. The State,
Because the charge of the court did not sufficiently instruct the jury in the law applicable to the case, the judgment of the lower court must be reversed and the cause remanded for a new trial.
Reversed and remanded.