24 Tex. 61 | Tex. | 1859
Lead Opinion
The appellant was indicted on the 12th day of October, 1855. The indictment against him contains three counts. The first count charges that the appellant “ did falsely make a certain entry on and in the records of the District Court of San Augustine county, the said records then and there being public records; the said falsely made entry, &c., becoming, and being a part of the public records of the said San Augustine county District Court.” The second count, charges that the appellant “ did fraudulently alter a record of the District Court of San Augustine county, the said record then and there being a public record.” The third count charges that the appellant fraudulently altered the records of the District Court of San Augustine county, and proceeds to state with particularity, in what the alleged fraudulent alteration consists. Each count of the indictment purports to set out in hcee verba, the forged entry, which, it is charged, the appellant made in the records of the District Court of San Augustine county.
We do not think it necessary or proper for us to remark upon the testimony in the case, further than to say, that there was evidence that the appellant was the clerk of the District Court of San Augustine county, from about the year 1845, until the beginning of the year 1858. Nearly all the witnesses thought that the entry on the minute-book of the court, which was alleged to be the forgery in question, was written in a feigned hand._ Some of them thought it was written by the appellant. The present clerk of the court testified that the minute-book containing the entry, was one of the record books of the office, and came into his custody when he succeeded the appellant in the clerkship, in January, 1853. There was other testimony in the
The first question is, supposing the appellant to be guilty, against what law did he offend ? The 26th section of the Act of 21st December, 1836, punishing crimes and misdemeanors, provided, that “ every person who shall feloniously steal, take away, deface, utter, or falsify any record, writ, process, or other proceedings, in any of the courts of this republic, or any office for record,” shall be punished, &c. We are of opinion that this statute did not embrace the offence charged in this indictment. But the 54th section of this Act of 21st December, 1836, provided, “ that all offences known to the common law of England, as now understood and practised, which are not provided for in this act, shall be punished in the same manner as known to the said common law.” The offence charged in the indictment was known to the common law, and might have been punished by virtue of the said 54th section of the Act of 1836, so long as that section was in force. But as respects this offence, the 54th section of the Act of 1836 was repealed by the Act of the 20th of March, 1848. The Act of the 20th of March, 1848, provided, that all laws and parts of laws, conflicting with it should be repealed. The 33d section of the Act of March 20th, 1848, provided, in express terms, for the punishment of this offence, and therefore the Act of 1848 repealed, or took the place of the 54th section of the Act of 1836, so far as this particular offence is concerned.
The Act of the 20th of March, 1848, went into effect on the 1st day of January, 1849. Until the 1st day of January, 1849, therefore, this offence was punishable as at common law, by virtue of the 54th section of the Act of the 21st December, 1836, which had never before, as to this offence, been repealed. After the 1st of January, 1849, this offence was punishable under the provision of the 33d section of the Act of 20th March, 1848, by confinement in the penitentiary.
It is contended, that the offence charged in this indictment, is
I have noticed the provisions of the law of 1836, and of the law of 1848, because it was necessary to do so, in order to present clearly, what seems to us to be an error in the charge of the court in this case. In order to do this, however, we must advert to the statement of facts. There is no evidence contained in the statement of facts, showing or tending to show, at what time the offence charged in the indictment was committed. We presume, however, from what is disclosed in the record, that the false entry in question, appeared in the court below, to bear date of the 21st of April, 1848. At that time, the law of 20th of March, 1848, had not gone into effect.
There is not, however, a particle of evidence contained in the statement of facts, to show at what time the Alleged false entry appeared to have been made in the minute book of the court. There is, in the statement of facts, a certificate of B. F. Benton, the present clerk of the District Court of San Augustine county, stating that the alleged forged entry appeared to have been made in the minute-book, under date of the 21st of April, 1848. This certificate bears date on the 23d of May, 1859, long since the statement of facts was signed by the judge who presided below. This certificate, of course, is no part of the statement of facts, and cannot be noticed by this court as evidence. The petition in the case of Bird L. Hanks against the State, in which named case the alleged forged entry was made, bears a file mark of the 17th January, 1847, and purports to have been verified by affidavit, before the then district judge, on the same day. But the appellant was not indicted for forging the petition, and the date of the filing of the petition furnishes no evidence of the time
The judge instructed the jury, that the offence was punishable by fine and imprisonment, at the discretion of the jury. This conclusion was reached, doubtless, by treating the offence as a common law offence, and applying to it the provisions of the Act of the 9th of February, 1854, which was supplemental to the Act of the 20th of March, 1848. The Act of the 9th of February, 1854, provides, that all offences known to the common law, the punishment of which is not provided for in the statutes of this state, shall be punished by fine and imprisonment, at the discretion of the jury.
The 54th section of the law of 1836, as to this offence, was in force until the law of the 20th of March, 1848, took effect, which was on the 1st day of January, 1849. If this offence then, was committed before the 1st day of January, 1849, it was an offence against the 54th section of the law of 1836. The law of 1836 punished this crime as at common law. At common law, the crime of forgery, or the false making of any writing, with intent to defraud any person, was punishable by fine, imprisonment, and pillory. Particular kinds of forgery were punished in England, by the different statutes of .that realm. The offence of forging a court roll, with intent to affect title to real property, was punishable by the statute of 5 Eliz. ch. 14, by forfeiture to any person injured, of double the costs and damages, by pillory,
We think, then, that the Act of the 9th February, 1854, making offences known to the common law, punishable by fine and imprisonment, at the discretion of the jury, may be considered as ameliorating the common law punishment for forgery.
The statute of 1854 provided, that where the punishment of offences committed before its passage was ameliorated by its provisions, and such offences were tried after it took effect, the judgment in such cases should be according-to the punishment prescribed by its provisions; in other words, the offender should have the benefit of the amelioration of punishment. If, then, this offence, of which we are now inquiring, was committed before the 1st of January, 1849, it was an offence against the 54th section of the law of 1836, and by the provision of that section, was punishable as at common law, that is to say, by fine, imprisonment and pillory; but the cause being tried, after the lawr of the 9th of February, 1854, went into effect, it would be punished under the last named law, by fine and imprisonment, at the discretion of the jury, because the law of 1854 mitigated or ameliorated the common law punishment. But if this offence was committed after the 1st day of January, 1849, it would be punishable by confinement to labor in the penitentiary, by the provisions of the 33d section of the law of the 20th March, 1848.
By this it will be seen, that it was important to ascertain when this offence was committed, in order to prescribe the proper punishment for it; and because the judge below assumed that the law of 1848 had no application to the case, instead of leaving it to the jury to determine at what time the offence was committed, and by their verdict to ascertain whether or not the law of 1848 was applicable to the case, there was error for which the judgment below must be reversed, and the cause remanded.
But this record presents another question, which we feel it to
The offence in question is charged in the indictment to have been committed on the 5th day of May, 1854. The indictment was filed in court on the 12th day of October, 1855. On the trial of this cause, in the court below, the defendant’s counsel asked the court to instruct the jury, that if they believed, from the evidence, that the offence was committed more than two years before the finding of the indictment, the prosecution was barred by limitation. The court was also asked to instruct the jury that if they believed, from the evidence, that the offence was committed more than five years before the finding of the indictment, the prosecution was barred. The judge below refused both these instructions, being of opinion that the limitations prescribed by the Act of the 9th of February, 1854, had no application to this case, inasmuch as two years had not elapsed from the time that act went into effect, before the time of the finding of the indictment. As the time when this offence was actually committed, may be ascertained upon another trial,
The rule, that civil statutes must be construed to operate prospectively and not retrospectively, is so well established, that we need not quote the numerous cases that 'have been decided in England and in this country, in which this principle has been recognised. In his opinion, in the case of Dash v. Van Kleek, 7 Johns. 499, (I quote the page on which the opinion commences,) Chancellor Kent said, “ It is a principle in the English common law, as ancient as the law itself, that a statute, even of its omnipotent parliament, is not to have a retrospective effect.”
I find this principle in relation to the construction of statutes, everywhere recognised by the law-writers, and in the adjudications of the courts; and I can nowhere find that the rule is different in relation to criminal statutes, from what it is in relation to statutes affecting only civil rights. There is a single sentence in Wharton’s American Criminal Law, in relation to a criminal statute of the state of Pennsylvania, which says that it is retrospective, and. a case is cited; but we have not been able to see that case, so as to determine in what sense the statute is held to be retrospective.
The reason given for the general rule that statutes shall not be permitted to have a retrospective operation, is that vested rights ought not to be affected. It may be contended, and with force too, that there is less reason why the legislature should not
We cannot say, that it is clear from this section, that the legislature meant any thing more than to declare that the punishment of offences, committed previous to the time the act should go into effect, should not be increased, or held to be entirely abolished. The object of the section was, probably,
We think, then, that the judge below did not err, when he held, that the statute of 1854 could not operate as a bar to a prosecution, commenced within two years from the time that statute went into operation, there being no previous limitation to the prosecution of the offence in question. We think the limitations, prescribed in the statute, would begin to run after the statute went into effect, and that prosecutions for offences, eyen if previously committed, would be barred in two, five, and ten years, respectively, after the statute went into effect. We have come to this conclusion, not without hesitation, and our views are here expressed, in order that this question may receive the attention of counsel. The case must be reversed and remanded, for the reasons given in a former part of the opinion; and if the case comes back to this court, and upon more mature deliberation, and further investigation, we are brought to the conclusion, that the opinions here expressed are erroneous, we will be ready to renounce them, and put ourselves right upon so important a question.
In arriving at these conclusions, we have been not a little influenced by the fact, that the courts of this state refused to give to the statue of limitations of 1841, a retrospective operation in any case, and that, when there was a strong feeling in the coun
The cases of Gautier v. Franklin, 1 Texas, Rep. 782; and De Cordova v. The City of Galveston, 4 Id. 470 ; instead of being authorities in favor of the proposition, that a statute of limitation ought to operate retrospectively, are authorities the other way. In both those cases, the statute of 5th February, 1841, was held to have no retroactive effect upon contracts, but only began to affect them from and after its passage; to use a homely
Dissenting Opinion
dissenting. I concur in the reversal of the judgment, and am of opinion, that the limitation prescribed to prosecutions, applies as well to prosecutions for offences, committed before the passage of the statute, as afterwards; and that, as the words of the statute plainly import, the limitation commences to run, from the time of the “ commission of the offence whether that was before or after its passage. The statute makes no distinction, as respects the limitation; it makes no exception, from its provision, of offences previously committed; and I know of no principle, or rule of construction, which will authorize the court to engraft an exception upon the statute. It is a statute, relating to the remedy, and being enacted for the benefit of persons accused, is not an ex post facto law. The constitutional inhibition of the enactment of retroactive laws, and laws impairing the obligation of contracts, has no application to penal statutes. Retroactive criminal laws, which are forbidden, are those which come under the denomination of ex post facto laws. There is nothing to prevent statutes, respecting crimes, from being retrospective, provided they do not come under that denomination.
It is an acknowledged general rule, in the construction of statutes, that they will not be construed to have a retrospective operation, so as to destroy or impair rights of property, or of action, unless the legislature have plainly expressed such to be their intention. But laws which affect the remedy merely, are not held to be within the rule, or the inhibition against retro
I do not think the reservation contained in the 81st section of the act, was intended to have, or should be construed to have, any effect upon the limitation contained in the 75th section. That section was intended only to prevent repeals by implication, and to enforce the observance of the rule, which would have applied on general principles, without its enactment, that where the act mitigates the punishment, the milder penalty should be imposed. To hold it to apply to the limitation prescribed for prosecutions by the act, would be to except all offences committed before the passage of the act, from the operation of the periods of limitation therein contained, and to hold that those offences would never become barred under its provisions. I cannot think, that such was the intention of the legislature.
There may be differences of opinion, respecting the policy of prescribing so short periods of limitation, to prosecutions for high crimes. But that was a question for the law-making power; and I can see no reason why the legislature should have intended the limitation to apply to future, and not to past offences. The same reasons, and the same policy, which dictated that the prosecution should be commenced within a prescribed period, after the offence was committed, would seem to apply equally to
Entertaining these views, I could not give my assent to the imposition of the pains and penalties of the law, where the prosecution had not been commenced until after the expiration of the time within which the legislature have positively enacted, that the offence “shall be prosecuted,” or be forever barred. Before I could venture to pronounce sentence, I should desire to be convinced of my right to do so, by adjudications in point, supported by very satisfactory reasons. But 1 apprehend, if the question shall be found to have been adjudicated by other courts, it has been in accordance with the opinion I have expressed. The only reference I have seen to any case, apparently in point, is by Mr. Wharton, in his Treatise on Criminal Law, p. 450, § 446, 4th edit.; and in his Digest, vol. 1, p. 523, § 802, 6th edit.; to the case of the Commonwealth v. Hutchinson, Q. S. Pa., 7 Leg. Int. 118 ; 2 Pars. 453. We have not access to the case, but I think it will be found fully to support this opinion.
Reversed and remanded.