33 Tex. 599 | Tex. | 1871
The appellant in this case was indicted in the District Court of .Fayette county, for the theft of a mule, and on the sixth day of June, 1870, was tried in said court and convicted of the offense charged, and from the judgment of that court, entered up against him, he has appealed, and now seeks a reversal of the judgment by this court, for reasons set forth in his assignment of errors and bill of exceptions, wherein he especially claims that he was, by the erroneous ruling, of the district court, deprived of the rights guaranteed to him by the Constitution of the Htate.
The Attorney General, however, files a motion to dismiss the appeal, for the reason that defendant failed to file his motion for a new trial in the court below,-within the time prescribed by law, and that therefore he is not entitled to be heard on an appeal. We are satisfied from the repeated decisions of this court, that when a party seeks the revision of a judgment of a lower court, upon the fac^s of the case, or rather upon the ground that the judgment was not warranted by the evidence, he will not be entitled to a hearing in this court, unless he had filed his motion in that lower court for a new trial, and that too within the time prescribed by law. (Foster v. Smith, 1 Tex., 70; Tuberville v. The State, 4 Tex., 128, and Hart v. Ware, 8 Tex., 115.) But we are not aware of any ruling of this court which would prevent a party from seeking a revision by this court of errors of law committed in the district court, even though no motion for a new trial was made in the lower court. This is believed to be the intent and meaning of the latter clause of Art. 3138, Paschal’s Digest, which reads as follows: “ When the defendant has failed to move for a new trial, he is nevertheless, entitled, if he appeals, -to have a statement of the facts certified and sent up with the record.'’ This construction of article 3138, would relieve it from an apparent
We are therefore of the opinion that appellant should he heard in this case, in so far as he claims that errors of law were committed to his prejudice in the court below.
We are therefore called upon to decide the legal questions relied upon by counsel for appellant for a reversal of the-judgment of the lower court in this case, as set forth in his assignment of errors and bills of exceptions.
There are many errors of the court below complained of, but under the peculiar circumstances under which this case has come up, we deem it unnecessary for us to notice any other alleged errors than those set out in appellant’s sixth assignment of errors,, in which, and in the exceptions therein referred to, appellant complains that on the trial of' his case the court, on motion of the district attorney, excluded six. or more duly qualified and competent jurors, for the- reason .that a portion of them were not freeholders •or householders, as required by the statute, and that others were not on the jury list, as required by the same statute; and counsel for appellant claims that the statute prescribing certain qualifications for jurors is in conflict with section 45, article 12 of the Constitution now in force, and is therefore of no binding force or authority. • That statute,' prescribing certain qualifications for jurors was passed in 1856, under a different. Constitution and a different Organization of'society from that which exists at the present time. Then the law was in strict conformity with the Constitution and the requirements of society; but that Constitution.being no longer adapted to the changed condition and réqúirements of society, has passed away and become obsolete, while a new Constitution, to meet the wants and demands of society in its rapid changes, has been adopted; and that new Constitution, and not the old one, is hereafter to be the rule and authority for the interpretation and construction of all our latvs, whether passed before or after its adoption.
The law prescribing a property qualification for a juror, or that which prescribes that no person shall be a qualified juror unless his name he on'a jury list, prepared and kept by the county court of each county, is certaiuly in conflict with Article 12, section 45, of our Constitution, which declares that “ all the qualified voters of each county shall also' be qualified jurors of such county.” There is no ambiguity in the language of that clause of the Constitution which would authorize any other construction than an intended prohibition to the Legislature, county court or any other body of men, from prescribing any other qualification for a juror than that he should be a qualified voter. We are therefore of the opinion that the ruling of the district, court in' excluding a juror from the panel because he was not a freeholder, or householder, or because his name was not on the jury list prepared by the county court, was erroneous, and in conflict with the express declaration of the Constitution, and for which error this cause is hereby reversed and remanded,
Reversed and remanded.
