Kemp v. State

Winkler, J.

The appellant was indicted by the grand' jury of Hamilton county, charged with the murder of F. A. Smith, alleged to have been committed in Hamilton county, Texas, on May 2, 1881. The case Was not tried in Hamilton, but was transferred by change of venue to the county of Coryell, where a trial was had on June 11, 1881, which resulted in a verdict of guilty of murder in the first degree and the assessment of the death penalty. Judgment being rendered in accordance with the verdict of the jury, and a motion for a new trial having been overruled, this appeal is prosecuted. Some of the main features of the transactions relating to the killing of the deceased and the indictment and trial of this appellant may be briefly stated as follows: On the day of the homicide the appellant Kemp and one Bogan were in the town of Hamilton. During the day the homicide was committed a quarrel ensued between Bogan and the deceased, leading on to a personal rencounter between them.' Whilst these two, Bogan and the deceased Smith, were engaged and fighting together, the appellant Kemp interfered on the side of Bogan. The attention of Smith was drawn from Bogan to Kemp, and the contest then became one between Kemp, the appellant, and Smith, which continued between them until Smith fell from a pistol shot fired by the appellant Kemp.

The circumstances of this case in many of its controlling features bear such analogy to the cases of Guffee v. State, 8 Texas Ct. App. 187, and Foster v. State, Id. 248, that the rules of law enunciated in those cases will apply in the main to the one now under consideration; so that, in so far as the law of this case has been settled in the cases referred to, we will content ourselves with the rules there laid down rather than enter upon an extended examination of authorities upon which the rules deduced appear to rest. We are not inclined to the opinion now that further investigation would result in any material change, for the reason that those cases when before this court were decided after very careful consideration of the best accessible authorities on the questions involved and from which our conclusions emanated.

In the present case, however, there was a matter preliminary to the trial and prior to the change of venue which will have our first attention. The defendant pleaded in abatement of the indictment presented against him. In the plea the defendant avers that he was confined in jail at the time the grand jury which presented the indictment against him was organized and impaneled, that he was a minor without means to employ counsel and had to depend upon friends for the means of employing counsel, and in fact had no counsel to represent him until after the indictment had been found and returned into court; that he did not know nor was he informed of the time when the grand jury would be organized, or that he even had the right to challenge the array or any individual member of the grand jury; that the persons composing the grand jury were not selected by the jury commissioners for the term of the court at which they found the indictment; that the list was not certified by the jury commissioners as required by law; that the envelope which contained the list was not properly indorsed; that the clerk had opened the envelope more than thirty days prior to the time of the meeting of the court, i. e., that it was opened April 2, 1881, and the court did not meet until May IS, 1881; that the grand jury was summoned by a person unauthorized by law; and that one member of the grand jury was one of the principal State’s witnesses in the prosecution against him. The court below overruled the plea and the defendant excepted.

Aside from the statement appended by the presiding judge to the bill of exceptions to his ruling on the plea, which appears to explain in a very satisfactory manner the objection to the grand jury, the opening of the envelope, and the official capacity of the officer who summoned the grand jury, and the like, we are of opinion the correctness of the rulings of the judge on the plea must be determined and stand or .fall by a proper interpretation and application of several articles of our Code of Procedure as we find them to be since the last revision, and which were in force at the time of the trial on the plea in question. By article 376 it is provided, that when twelve qualified jurors are found to be present the ■court shall proceed to impanel them as a grand jury, unless a challenge is made, which may be to the array or to any particular individual presented to serve as a grand juror. The next succeeding article directs the time and manner of making a challenge, and succeeding articles ■prescribe causes of challenge to the array or to an individual grand juror.

In order that we may be fully understood we quote the language of the several articles. “Art. 377. Any person, before the grand jury has been impaneled, may challenge the array of jurors or any person presented as a grand juror, and in no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in the jail of the county shall, upon his request, be brought into court to make such challenge. Art. 378. By the array of grand jurors is meant the whole body of persons summoned to serve as such, before they have been impaneled. Art. 379. A grand juror is said to be impaneled after his qualifications have been tried and he has been sworn. By the word ‘panel’ is •meant the whole body of grand jurors. Art. 380. A challenge to the array shall be in writing, and for these causes only: 1. That the persons summoned as grand jurors are not in fact the persons selected by the jury-commissioners. 2. In case of grand jurors summoned by order of the court, that the officer who summoned them has acted corruptly in summoning any one or more of them. Art. 381. A challenge to a particular grand juror may be made orally, and for the following causes only: 1. That he is not a qualified grand juror. 2. That he is the prosecutor upon an accusation against the person making the challenge. 3. That he is related by consanguinity or affinity to some person who has been held to bail, or who is in confinement upon a criminal accusation.” It will be noticed that the language of these articles differs from corresponding articles of the Code as in force prior to the revision, and it seems that article 401 of the old Code (Pasc. Dig. art. 2868) has been entirely omitted from the revision, and is no longer in force. We are of opinion, however, that the substance of the omitted article is virtually embraced in the enlarged provisions we have quoted, as will be apparent by comparing the articles now in force with the corresponding articles of the former Code.

It will be seen from the articles quoted that there are but two causes of challenge to the array, and, agreeably to article 380, these are the only challenges to the array the law permits. Also, with reference to a particular juror, there are enumerated and specifically named three causes of challenge, to the exclusion of every other, by article 381.

This is not all. The causes of challenge are not only enumerated, and declared to be the only challenges the law permits either to the array or to an individual grand juror, but the time at which these challenges must be made is limited to a particular stage of the proceedings. They must be made before the grand jury has been impaneled; and not only so, but the law further declares that in the way here pointed out and in no other way shall objections to the qualifications and legality of a grand jury be heard.

Hence our conclusions are that the qualifications as well as the legality of a grand jury cannot be questioned after the grand jury shall have been impaneled; that, if there be any cause of challenge, such cause must be made available in the manner pointed out in the appropriate article, and before the grand jury is impaneled, but not after. The right of a prisoner confined in the jail of the county to make such challenge is limited to the time before the grand jury shall have been sworn. But further, a person so confined is entitled to be brought into court whilst the grand jury is being impaneled only upon Ms request of that privilege. If he does not make such request at the proper time, he is not permitted to. complain afterwards. This is, we are of opinion, the proper interpretation and application of the several articles of the Code. It is too late to make any objection to the qualifications of a grand jury, or to the legality of a grand jury, after it has been impaneled and sworn.

There are other provisions of the Code of Procedure at present in force which it would be well to consider in connection with the general subject we have been discussing. “Art. 522. On the part of the defendant, the following are the only pleadings: 1. The motion to set aside the indictment or information. 2. A special plea setting forth one or more facts as cause why the defendant ought not to be tried upon the indictment or information presented against him. 3. An exception to the indictment or information for some matter of form or substance. 4. A plea of not guilty. 5. A plea of guilty. It will be seen that the causes which may be assigned in a motion to set aside an indictment or information, as provided for in clause 1 of article 522, are limited and restricted to the two grounds mentioned in article 523. The special pleas mentioned in clause 2 of article 522 are limited to the two mentioned in article 525; which are, 1, former conviction, and 2, former acquittal. The exception to an indictment or information must be for some matter of form or substance. The exceptions to the substance of an indictment or information are limited to the causes set forth in article 528, and exceptions to the form of an indictment or information are in like manner limited to causes enumerated in article 529. The other two pleas mentioned in the fourth and fifth clauses of article 522 are also defined and the pleading and practice described in other articles of the Code.

By a careful comparison of the defendant’s plea in abatement it will be found that, as we have seen, those portions of the plea which call in question the organization or legality of the grand jury could only have been reached in the manner prescribed by the Code, and before the grand jury had been impaneled and sworn. Upon a further comparison of the plea with the articles of the Code as to what a defendant may plead, and the manner' in which these several pleas have been circumscribed, it is apparent that the defendant by his plea did not bring himself within any provision of the Code which he could invoke for his protection. We therefore conclude that the court below did not err in overruling the plea in abatement.

It may be, however, that as a matter of practice it would not be amiss for the district judge, when about to organize a grand jury for any term of court, and when it can be done with safety, to have the prisoners confined in jail brought into court that they may have an opportunity to challenge the whole or any portion of the grand jurors before they are impaneled and sworn, and this for what seems to us still to be reasonable, as indicated in Reed v. State, 1 Texas Ct. App. 1; not as a matter of right, unless requested at the proper time, but as a matter of expediency, and an additional safeguard against an improper indictment.

There is another matter presented in the record and discussed in argument by the appellant’s counsel which should not be overlooked. The judge in his prefatory remarks to the jury in effect told the jury that the case was on trial in Coryell county by change of venue from Hamilton county, and proceeded to charge the law of the case. It is not attempted to be shown that this was not the fact. The record discloses no statement as to any controversy over the regularity of the change of venue; but, even if it had been contested, for aught that appears from the record here, the action of the court was not only warranted but was eminently proper, and was fully warranted by art. 576, Code Crim. Proc. The controversy seems to have arisen from the fact that the transcript and papers from the court in Hamilton county had not been in fact filed in the District Court of Coryell county. This was at most but a mere irregularity, and ' could have been corrected at any time by direction of the court. Besides, we find in the record a motion made by the defendant’s counsel which commences with the language: “ And now comes the defendant in this cause by attorneys and shows to the court that the transcript filed in this court of the proceedings had in this cause in the District Court of Hamilton county is incomplete in this, that the proceedings had in this cause on the 25th day of May, A. D. 1881, in the District Court of Hamilton county is not included in said transcript; Wherefore, ” etc. The motion was very properly refused, agreeably to the statement of the judge appended to the bill of exceptions taken to his ruling. We are of opinion the record shows that the venue was properly changed from Hamilton to Coryell, and that the motion to amend the record, under the circumstances detailed by the judge, was properly refused, in that it deprived the defendant of no legal right that we can perceive. The preliminary remark of the judge was at most a harmless one, and did not form ■any part of the charge proper, by which the case was to be determined.

To return to a consideration of the question involved in the main case as presented by the record. The circumstances under which the homicide took place, as detailed by the witness, invoked at the hands of the court clear and explicit instructions as to murder of the first and second degrees, or manslaughter, and on homicide in self-defense, as well as suitable instructions on the subject of the right of the defendant to intercede in behalf of his friend, and explaining the circumstances under which he might intercede and the extent to which the law permitted him to go in order to protect his friend as well as the consequences resulting to the defendant in case he carried his interposition to an extent not warranted by law. These are the main points arising upon ' the testimony and to which it became the duty of the judge to instruct the jury in his charge.

It is not shown by the evidence, except from circumstances, whether the defendant engaged with Bogan in the rencounter against the deceased, having a common intent to take the life of the deceased or to do him such bodily injury as might result in the death of the deceased. This was a pertinent and material inquiry to be submitted to the jury by the charge, tho jury being left free to determine the question as the proof warranted. Another important inquiry was as to the condition of Bogan and the deceased at the very point of time at which it is shown by the testimony the defendant interfered, in order to determine whether the law permitted the interference of the defendant at that precise time, and to what extent the law authorized such interference on the part of the defendant. Another important inquiry is as to the result of a killing by the defendant after his interference on behalf of his friend. To our mind it appears with a considerable degree of clearness, from the statement of facts, that the defendant and Bogan were intimate friends at the time of the homicide; that they were together on that day in the town of Hamilton, where the homicide took place; that Bogan was under the influence of intoxicating liquor at the time he first met with the deceased; that the defendant was sober, so far as the testimony discloses, during the entire day. There is evidence tending to show that, prior to the time Bogan and the deceased engaged in the rencounter, the defendant endeavored to induce Bogan to go with the defendant home. The evidence tends to show that at the time of the rencounter both the defendant and Bogan were strangers to Smith, the deceased. When Bogan and the deceased commenced their quarrel, the deceased was in his wagon; that during an angry altercation which ensued between Bogan and the deceased the latter got out of his wagon on to the ground. A wordy altercation and mutual banterings to fight ensued, during which Bogan attempted to draw a pistol. The deceased told him if he did draw his pistol that he, the deceased, would knock him down. Bogan did draw, and the deceased did knock him down. Agreeably to the testimony, the defendant, who had been standing near, interfered, rushed up with his pistol in hand and seized the deceased by the shoulder with his left hand, and with his right hand struck the defendant a lick over the head with his pistol, the lick glancing to the deceased’s shoulder. Just about this time the defendant rose and, with Bogan’s pistol in his hand, turned upon the defendant, who commenced backing, and the deceased following him up with the pistol in his hand, the defendant keeping his pistol between himself and the deceased and endeavoring to fire upon the deceased, and the deceased with the pistol he had knocking at the pistol arm and hand of the defendant. Whilst thus retreating and advancing, some shots were fired by the defendant, a portion being what the witnesses call squibs, neither of which took effect until, while the parties were in this situation, the defendant fired the fatal shot and the deceased fell and died in a few moments. The testimony impresses us with the belief that Smith, the deceased, was a stout, athletic man and not afraid of a difficulty, but that he was unarmed until he procured Bogan’s pistol, and that he did not intend or attempt to take the life of either Bogan or the defendant.

The charge of the court was very full and elaborate, and applies to every feature of the case as presented by the evidence. But, if there is any evidence at all of a knowledge of the defendant as to the motives which actuated Bogan in bringing on a difficulty with the deceased, such evidence was very meager indeed, and from the meagerness of the testimony as to whether there was any cooling time allowed the defendant under the circumstances by which he was surrounded, or whether he had time to form that sedate and deliberate mind necessary to constitute murder in the first degree, we are led to scan the charge minutely in order to determine whether in the charge (prepared during what must have been an exciting trial) there was embodied some clause which was calculated to mislead the jury. In taking up and reading the charge of the court, paragraph by paragraph, and considering each one separately in the light afforded by the appellant’s brief, we are driven to the conclusion that the greatest objection to which any paragraph may be subjected does not amount to more than a harmless criticism upon the verbiage employed, and does not involve any erroneous statement of the principles of law in the particular instance complained of, or of which the defendant can reasonably complain; and, taking each paragraph separately or the whole charge collectively, we regard it as a full and complete elucidation of the law arising upon every deduction arising upon the evidence. The charge is not likely to mislead a sensible jury after a careful reading in its entirety. A discussion seriatim of the several objections urged in the brief and oral argument of the defendant’s counsel would result in an unnecessary and unprofitable consumption of time. That portion of the charge on the subject of killing in defense of self or another is, in our opinion, exceptionally fair to the defendant. The line which separates the two degrees of murder was clearly defined, and in fact the general principles and definitions, and their application to the facts in the case, are alike free from objection, so far as we have been able to perceive. The charge also embraced the presumption of innocence and the reasonable doubt as to murder in the first degree, and between the two degrees of murder as well as between murder in the second degree and manslaughter, and as to whether the defendant was guilty of any offense whatever. Besides this there was a single charge asked by'the defendant, which was given by the judge without modification or qualification, so far as the record discloses. [

Yet, aside from all this, we are constrained to say that the evidence as to express malice is not sufficient to support a verdict of murder in the first degree. It is hot sufficient as to the intent which actuated the mind of Bogan when he entered into the controversy with the deceased, nor to establish the fact that the defendant knew the intent with which Bogan entered into the rencounter. It is uncertain on the subject of the intent with which the defendant entered into the difficulty between Bogan and the deceased, and as to whether the defendant had cooling time from the time he entered into the difficulty until the homicide was consummated. The testimony on these vital points in the case is too meager to support a conviction of murder in the first degree with the death penalty.

We are of opinion the court below erred in overruling the motion for a new trial upon the evidence; and for this error the judgment will be reversed and the case remanded.

Reversed and remanded.

Case Details

Case Name: Kemp v. State

Court Name: Court of Appeals of Texas

Date Published: Jul 1, 1881

Citation: 11 Tex. Ct. App. 174

Court Abbreviation: Tex. App.