48 S.W. 575 | Tex. Crim. App. | 1898
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty-five years; hence this appeal.
He complains of the action of the court in overruling his motion for a continuance. The motion for continuance is predicated on the absence of Will Goodman, alleged to reside in Smith County, and Jake Lane, and M.L. Earle, and William Brown, residents of Jacksonville, Cherokee County. The application does not state whether it was the first or second application for continuance. If it was the first, this should have been shown. As a second application, it did not fulfill the *87 requirements of the law. It does not show that the testimony of the absent witnesses could not be supplied from other sources. Nor does it show that appellant had a reasonable expectation of securing their attendance if the case were continued to the next term. Nor does it show that sufficient diligence was used to procure the attendance of said witnesses. As presented and treated by the court as the second application (and the court was so authorized to treat it), there was no error in the action of the court in overruling it.
Appellant urges a reversal of this case on account of the charge of the court, insisting that the court failed to give a charge on reasonable doubt, as applied to the case; that the only charge given on this subject was with reference to whether or not the jury should believe that appellant killed deceased. In this connection, at the request of appellant, the original charge of the court constitutes a part of the record, and is before us for inspection. From that, as well as from a copy of the charge as contained in the record, we find the same to be in the following condition: The court gave a charge covering the various phases in the case, and which was signed by the judge. Contained in said charge we find the following charge is all the charge given on reasonable doubt, to wit: "If you have a reasonable doubt that the defendant killed Emmett Simpson, you will acquit him." Following the charge so signed and certified, we find the following: "The defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt; and in case you have a reasonable doubt as to the defendant's guilt, you will acquit him, and say by your verdict, 'Not guilty.' You are the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given to the testimony; but you are bound to receive the law from the court, which is herein given you, and be governed thereby." This is not signed by the judge. The judge explains his failure to sign this in the following manner: "The instruction in reference to presumption of innocence was given to the jury with the main charge. After I had prepared the charge, I discovered I had omitted to charge as to the presumption of innocence, and I prepared the charge and gave it to the jury as a part of the charge, though my signature appeared before the charge on presumption of innocence. The clerk will forward to the Court of Appeals the original charge in case, with the record." Article 718, Code of Criminal Procedure, requires: "The general charge given by the court, as well as those given or refused at the request of either party, shall be certified by the judge and filed among the papers in the cause, and shall constitute a part of the record of the cause." This requirement — that is, the signing of the charges given by the court — has been held to be mandatory by an unbroken line of decisions. See article 718, Willson's New Crim. Proc., and authorities cited in note 1. Under a recent act of the Legislature (see Acts Twenty-fifth Legislature, page 11) it is provided, among other things, "that it will be presumed that the charge of the court was certified by the judge and filed *88 by the clerk of the court before it was read to the jury, unless such matters were made an issue in the court below, and it affirmatively appears to the contrary by the bill of exceptions properly signed and allowed by the judge, or proven up by bystanders as is now provided by law, and incorporated in the transcript as required by law." And it is further provided by the same Legislature (page 17) that "no judgment in a criminal case shall be reversed for disregard of article 718, requiring a charge to be given and certified, unless the error appearing from the record was calculated to injure the rights of the defendant, which error shall be excepted to at the time of the trial, or on motion for new trial."
The first proposition is, does it sufficiently appear that said charge on presumption of innocence and reasonable doubt was not certified to by the judge, and a failure to so certify reserved by a proper bill of exceptions? As shown by the judge's certificate to the bill, this is not a case where the clerk may have improperly arranged the different pages thereof in filing the charge. Evidently, as shown by the judge, his general charge had been completed and signed by him, when his attention was called to the omission, and he gave the additional charges on presumption of innocence and reasonable doubt. These were not signed. The judge believed that the signing of the general charge was sufficient and would cover the additional charges given. We can not agree to this contention. As presented, they form no portion of the general charge, were not included therein, and were as much separate charges as if they had been formulated by appellant and given by the court at his request. We therefore hold that said charges were not signed by the judge, and that the failure to so sign them was reserved by a proper bill of exceptions, certified by the trial judge, and we can not treat the same as a part of the charges given.
The second proposition with which we are concerned is, was the omission to instruct the jury on the question of reasonable doubt such error as requires a reversal of this case? If this omission is supplied in the charge as given, obviously there was no error. On recurring to that charge, however, we find that the only charge given on the subject of reasonable doubt was an instruction to the jury, if they had a reasonable doubt whether or not defendant killed Emmett Simpson, to acquit him. The effect of this charge, it occurs to us, was to deprive appellant of any reasonable doubt upon any other question or phase of the case. No issue whatever was made as to the fact that appellant did kill the deceased, and yet, by the instruction of the court, this was the only contingency that authorized an acquittal of the defendant. Instead of being told, if they had a reasonable doubt of the guilt of defendant, to acquit him, they were told they could only acquit him in case they entertained a reasonable doubt that he killed him. The question of reasonable doubt, as presented in the charge, was more hurtful to appellant than if the court had been altogether silent on the subject. It has been invariably held by this court that the failure of the trial court to give a proper charge on reasonable doubt was a fundamental error. See *89 Willson's New Crim. Proc., art. 765, note 4, and Penal Code, art. 713, note 20. We hold in this case that the charge should have been given, and that the charge on the subject as given by the court, instead of curing the error, emphasized it. This is the second appeal in this case, but, under the law, we are required to reverse it because of the error of the learned judge in failing to properly instruct the jury. The provisions regulating this subject are statutory, and have long since been construed by this court as mandatory. The judgment is reversed, and the cause remanded.
Reversed and remanded.
