P. M. SANDERS ET AL. V. THE STATE.
No. 1831.
TO TEXAS CRIMINAL REPORTS.
May 28, 1913.
70 Tex. Crim. 532
Reversed and remanded.
Reversed and remanded.
1. Forfeited Appeal Bond—Second Bond—Release on First Bond.
Where appellants had entered into a former appeal bond and the judgment of conviction was reversed and the cause remanded, and they then entered into a second appeal bond after defendant‘s second conviction, a forfeiture could be legally declared on the second bond against the defendant and his sureties, even though the first bond had been a valid obligation. Following Peacock v. State, 44 Texas, 11, and other cases.
2.—Same—Statutes Construed—Appeal Bonds.
The law contemplates that after each conviction the amount of bail shall be fixed, and that a new appeal bond must be executed where defendant had appealed before, the case having been reversed and another conviction had, and that the sureties on the first appeal bond are released.
3.—Same—Evidence—Bail Bond—Judgment Nisi—Approval—Pleading.
It is not necessary to state in the judgment nisi or the scire facias that the bail bond was approved and the principal released from the bond; this is a question of evidence and not of pleading, and there was no error in admitting in evidence the bail bond and judgment nisi, and to show by other evidence that the bond was approved by the judge and sheriff and the principal released thereon.
4.—Same—Appeal Bond—Reversal—Release of Sureties.
Where defendant, after conviction of a felony, enters into an appeal bond, and the judgment is reversed and the cause remanded, the sureties on said appeal bond are not liable thereon, where their principal fails to appear at the next term of the court. Following Wells v. State, 21 Texas Crim. App., 594. Overruling Weaver v. State, 43 Texas, 386; Riviere v. State, 7 Texas Crim. App., 55. Prendergast, Judge, dissenting.
5.—Same—Statutes Construed—Functus Officio.
Under
6.—Same—Judicial Construction—Legislative Intent.
Where the Legislature, with a knowledge that this court had given the construction to recognizance in a misdemeanor case that the sureties were released from the recognizance when a cause is reversed and remanded, twenty-one years thereafter provided by law for a recognizance or appeal bond in certain felony cases, and in doing so used exactly the same language that had theretofore been used in recognizances in misdemeanor cases, it must be presumed that they did so under the judicial construction heretofore made, and the courts will so construe the law.
When the Legislature knew the construction placed upon liability of sureties on a misdemeanor recognizance and adopted the same language thereafter in a felony recognizance, it can not be assumed by this court that it intended that the sureties assumed a greater liability in one instance than in the other, and the courts have nothing to do with the policy of such law. Following Lewis v. State, 58 Texas Crim Rep., 351.
8.—Same—Obiter Dicta—Rule Stated—Stare Decisis.
Obiter dicta in an opinion is when a question is discussed which is not raised and is not an issue in the case, but if the question is raised, it is an issue in the case and a decision of that question is not obiter dicta, and where a question decided by the appellate court has stood unchallenged as the law of this State for twenty-six years, it adds but strength to that opinion.
9.—Same—Statutes Construed—Rule Stated—Reversal.
It has always been the rule in this State under the
10.—Same—Statutes Construed—Misdemeanors—Felony.
See opinion for discussion of the various Acts of the Legislature with reference to appeals in cases of felony and misdemeanors, that under the former law defendant was compelled to remain in jail in a felony case, while, in a misdemeanor, he might enter into a recognizance for his appearance upon appeal, but, since the law of 1907, a person convicted of felony can give a bond or recognizance while his case is on appeal. Referring to Wiseman v. State, recently decided.
11.—Same—Rule of Construction—Legislative Intent.
A rule of construction that has never been varied is that if a new law is passed, and it is the re-enactment of a former law, the construction prevailing as to the language used will be the same in the new as in the old, and if the language is borrowed from another statute, then the construction theretofore applied to that language will be applied to it in the new statute.
12.—Same—Public Policy—Legislation.
If, by construction of a statute, mischief is worked, this court is not the law-making power of this State and can not ingraft provisions on the laws which the language will not authorize, and where the Legislature knowing the judicial construction placed upon misdemeanor recognizances used the same language in a felony recognizance, it must be presumed that they intended that such should continue the construction to be placed thereon. Prendergast, Judge, dissenting.
Appeal from the District Court of Angelina. Tried below before the Hon. James I. Perkins.
Appeal from a forfeited appeal bond in the sum of $8000, judgment final.
The opinion states the case.
King & King and V. E. Middlebrook and Ingraham & Hoddes, for appellant.
On question of approval of bond: Crumpacker v. State, 46 Texas Crim. Rep., 132; Holt v. State, 20 Texas Crim. App., 271; Brown v. State, 40 Texas, 50.
HARPER, JUDGE.—This is a suit on a forfeited appeal bond. It appears from the record that one Joe Bug Roquemore was indicted, charged with murder in the first degree. Before trial the first time he did not seek to be released on a bail bond, but remained in jail until tried. When tried, on May 26, 1908, he was adjudged guilty of murder in the second degree and his punishment assessed at ten years confinement in the State penitentiary. His motion for a new trial being overruled, he gave notice of appeal, and asked that the amount of his bail on appeal be fixed, and the court did so, fixing it in the sum of six thousand dollars. Thereupon, on June 6, 1908, he entered into an appeal bond in said sum with good and sufficient sureties, conditioned as required by law, and he was released from jail on said bond. Thereafter this court reversed said cause and remanded it to the District Court of Angelina County for a new trial. No additional bail or appearance bond was required of appellant, but thereafter, in May, 1909, the cause was again called for trial, and the defendant appearing, the cause was tried and on the 12th day of May, 1909, the jury again found him guilty of murder in the second degree and his punishment assessed at confinement in the penitentiary for a term of fifteen years, and the sheriff again took charge of Roquemore and confined him in jail. His motion for new trial being overruled on May 21, 1909, defendant gave notice of appeal, and his bail was fixed by the court in the sum of eight thousand dollars. On June 7, 1909, he entered into bond with appellants as sureties, conditioned as required by law, and he was again released from jail,—the bond being approved by the judge trying the cause, and the sheriff. His case was again reversed by this court and remanded to the District Court of Angelina County for another trial. No additional bond was required of Roquemore other than this bond on appeal, and when court convened, his case was called for trial. He did not appear and this last bond was forfeited. Citation issued to the sureties, and on final hearing the forfeiture was made final, from which judgment the sureties prosecute this appeal.
The first contention of appellants is that when Roquemore was first convicted and gave the first bond in the sum of six thousand dollars, there was no authority in law on the second conviction to demand another bond, and the bond executed by them is not binding on them. This question has been frequently before this court, and it was held that even though the bond first given had been a valid obligation, conditioned after his second conviction for the appearance, that when the sheriff refused to release Roquemore on such bond, and demanded a new bond,
The next objection urged is that the court erred in admitting in evidence the bail bond on which appellants were sureties, the ground of objection being: “Because there was no allegation in the judgment nisi or in the scire facias in this cause that said bail bond had ever been accepted or that the defendant had been released from custody by virtue of said bond, and there are no allegations in either that such bond had been approved by the sheriff of Angelina County, nor any allegation that the same had ever been approved by the judge trying said cause in which the bond was taken, or his successors in office, and that after said bond was given, approved and accepted, that defendant had been released from custody.” The law requires that the bail bond on appeal shall be approved both by the judge trying the case, and the sheriff of the county before the former is entitled to be released (
It is admitted by appellants that, had this court affirmed the judgment, the conditions of the bond are such, that in the event he failed to appear and abide the decision of this court, the sureties on the bond would be liable, but they contend, under the peculiar wording of the Code, and the conditions in the bond on appeal, that the sureties were discharged from all liability when this court reversed and remanded the cause, and this contention has support in the decisions of this court. In passing on this question the Supreme Court held, when it had jurisdiction over these matters, that the sureties on recognizance, on appeal would be liable, even though the case was reversed and remanded. In the case of Weaver v. State, 43 Texas, 386, Judge Gould said:
“It is sufficient to say, that by the terms of the recognizance the sureties are bound for the appellants’ appearance at the District Court to abide the judgment of this court. In the case we are considering that judgment is not that the defendant be discharged, but that the case be reversed in order that it may be tried again. Until defendant has made his appearance and has obtained the leave of the court to depart the condition of the recognizance prescribed is for all appeals, whether by the State or defendant. Previous to the enactment of the statute prescribing this form, the law required the defendant, when the appeal was by the State, to enter into recognizance with sureties ‘to appear before the District Court to answer the criminal accusation against him in case the judgment of the District Court be reversed.’ (Paschal‘s Dig., art. 3187.) The form now prescribed is believed to be sufficient to secure the appearance of the appellant at the proper term of court to answer the accusation against him if the effect of the judgment of this court be to remand the case for a new trial.”
This court after its organization, in an opinion by Judge White, in the case of Riviere and others v. State, 7 Texas Crim. App., 55, followed that opinion, but in a later opinion, while the same learned judge was on the bench, this court held otherwise with his full concurrence, and based its opinion on a new provision of the Code of Procedure, adopted subsequent to the decision in those cases. The Twenty-second Legislature added the following provision to our Code of Procedure, which is now
“It is only in the case of an affirmance of the judgment of conviction by this court, that the defendant‘s recognizance, given on appeal, can be forfeited. When the judgment of conviction is reversed, and this court awards a new trial to the defendant, the cause stands as it
would have stood in case the new trial had been granted in the court below. In such case the recognizance given on appeal has served its purpose, and is functus officio. . . . We conclude, therefore, that the recognizance of the defendant on appeal was no longer of any binding force after the reversal of the judgment and the awarding of a new trial by this court, and can not support the judgment of forfeiture.”
In this case both the Weaver and Riviere cases are referred to, but it is held that they were not the law since the adoption of
In providing for the giving of recognizance or bail bond on appeal in felony cases, the Legislature in using the same terms and language which were used in misdemeanor recognizances, it must be held that this recognizance should have the same construction, meaning and intent as given to the misdemeanor recognizance. It is said that the Legislature certainly did not intend, in adopting the felony recognizance, where a person had not given a bail bond prior to his conviction, that in the event this court reversed and remanded the cause, the person charged with crime would be released. This phase of the subject should be considered, for such a construction may result in much mischief, but this court is not the law-making body, and in construing each law passed, it must do so in accordance with the well recognized canons of construction, and when the Legislature knew the construction placed on liability of sureties on a misdemeanor recognizance, adopted the same language in a felony recognizance, we can find no just ground to hold that they intended the sureties assumed a greater liability in one instance than in the other. And while it may seem to work a hardship upon the State to so hold, yet, as the State elected the terms in which it would enact
We are of opinion that as the court had construed the language of our Code, and held the sureties on recognizance on appeal discharged upon a reversal of the case, that with this construction known to them, the Legislature placed the same language in the felony recognizance, and under all the rules of law the same construction must be given the language as had heretofore been placed thereon.
We wrote the above opinion some time ago, but as Judges Davidson and Prendergast were not then satisfied as to its correctness and on a number of occasions we have had this matter under advisement in order that we might agree upon a correct construction, harmoniously, but having reached the point where there will of necessity be a parting of our ways, unless some of us should surrender our convictions in the premises, we have decided to discuss at more length the last proposition involved. The court is unanimously of the opinion that all the questions discussed herein are correctly decided, except the last, but as to the last proposition Judge Prendergast has prepared an opinion in which he contests the correctness of the decision on the proper construction of the felony recognizance, consequently it may not be improper to review our laws as applicable to bail bonds and recognizances.
But the rule was different in misdemeanors, and instead of being compelled to remain in jail as in felony cases, in the Code of 1856 it was provided that a person convicted of a misdemeanor might enter into a recognizance for his appearance (art. 722, Code 1856), and that has been the law from that day to this. As to whether a surety on a misdemeanor recognizance on appeal was liable thereon in case of reversal came up for decision in the case of Weaver v. State, 43 Texas, 386, for the first time, so far as we have been able to ascertain, and the surety on the recognizance was held liable as stated hereinbefore, and this opinion was followed in Riviere v. State, 7 Texas Crim. App., 55, but the question came before this court again in the case of Wells v. State,
It is then stated that the Wells case is not the law, and should not have been rendered. If it is erroneous, the sooner it is overruled the better it will be is an opinion in which we heartily concur. But is it erroneous in construing the statutes? There is not and has never been
The judgment is reversed and the cause is remanded.
Reversed and remanded.
PRENDERGAST, JUDGE (dissenting).—I concur in the opinion of Judge Harper in this case on every question discussed and decided, except the last. After a most careful investigation and study of this question I have reached the conclusion that this last question should be decided the reverse of what Judge Harper has written. I do not propose to discuss the question at any length, but feel that in justice to myself it is necessary for me to express my views.
But one case is cited in the opinion to sustain it, that is, the case of Wells v. State, 21 Texas Crim. App., 594. In the first place, I am convinced that that decision on the point cited is clearly dictum, and should not be followed. The report of that case, and the opinion itself, shows that that question on the point for which it is cited in this case was not needful to the ascertainment of the question between the parties and was altogether unnecessary. As said by the United States Supreme Court in Carroll v. Carroll, 16 Howard, 275 (14 L. Ed., 936), “This court has never held itself bound by any part of an opinion which was not needful to the ascertainment of the question between the parties.” In this Wells case, supra, it is shown that this court held that the indictment in that case in which the bond was given, was absolutely void, because it was found by a grand jury composed of thirteen persons, and reversed and dismissed the case on that ground. It was, therefore, wholly unnecessary for the court to have passed upon the other question, and is and should be, held as dictum. I have searched diligently for any other decision by this court referring to or approving the opinion in said Wells case on that question, and have not found any. It is the rule of this court when a reversal is ordered to pretermit the discussion of any question which will not or can not arise on another trial. This should have been done on this question in the Wells case. This rule is followed in this court all the time as shown by the reports. But when this court affirms, it is necessary and proper to decide all pertinent questions, correctly raised.
In the second place, I believe the Wells case on that point was not correct, and that the
But whether I am right in this construction or not is not the controlling question. Prior to the decision in said Wells case, both this court and the Supreme Court, when it had criminal jurisdiction, expressly decided the question the reverse of what the Wells case on this point holds, and what the opinion in this case holds. This is expressly conceded in Judge Harper‘s opinion herein. Those cases are Weaver v. State, 43 Texas, 386, and Riviere v. State, 7 Texas Crim. App., 55. In the Weaver case the Supreme Court fully discussed and pointedly decided the question. This court in the Riviere case pointedly stated the question, recognizing the authority in the Weaver case and in effect approved and followed it. I think this court should follow and approve the Weaver and Riviere cases. The Weaver and Riviere cases were not overruled by the Wells case. On the contrary, they were expressly recognized thereby, and simply distinguished by a dictum incorrectly to the effect that a new statute made a change. But whether they are approved and followed or not, still under the facts of this case, I believe the only proper construction of our statute providing for an appeal bond on conviction of a felony should be, and is, to hold the sureties on such appeal bond liable if they do not have the appellant appear and stand trial in the District Court when his case has been reversed by this court and remanded for a new trial. The facts in the Wells case, supra, are altogether different from the facts of this case. In the Wells case the defendant had made a bail bond and was out on bail at the time of his trial and conviction in the lower court. Upon conviction and appeal he entered into a recognizance so as to prevent remaining in jail pending his appeal. When this court reversed his case and ordered a new trial in the court below, the court held that that would revive and put in force again the bail bond theretofore given in the lower court before his trial therein. That is not the state of facts in this case. In this he had given no bail bond in the lower court, prior to his trial and conviction therein.
The
It is true in law as well as in the affairs of life that “circumstances alter cases.” It is also true that a principle of law, when well established, and especially statutory, remains the same. But the application of a given principle to a given state of facts by no means follows. A principle of law that is applicable to one state of facts may be, and frequently is, wholly inapplicable to another. In fact, while a given principle of law may be applicable to one state of facts the reverse or opposite principle may be applicable to an altogether different state of facts.
All rules of construction of statutes are adopted and applied, as held all the time by all the courts, for the purpose of ascertaining the legislative intent. As correctly and tersely said by our Supreme Court in Edwards v. Morton, 92 Texas, 152-3, and approved and quoted by this court in Parshall v. State, 62 Texas Crim. Rep., 177, and in fact by all the courts: “The intention of the Legislature in enacting a law is the law itself.” There are numerous rules for the construction of statutes. The fundamental object and purpose of all of them is to ascertain and give effect to the intention of the Legislature. I will call attention to some of these rules laid down by text-writers and this court.
In Lewis’ Sutherland on Statutory Construction (2 Ed.), vol. II, secs. 415 and 416, he says:
“The modern doctrine is that to construe a statute liberally, or according to its equity, is nothing more than to give effect to it according to the intention of the lawmaker, as indicated by its terms and purposes. This construction may be carried beyond the natural import of the words when essential to answer the evident purpose of the act; so it may restrain the general words to exclude a case not within that purpose.”
“416. There is no arbitrary form of words to express any particular intention; the intent is not identical with any phraseology employed to express it. Any language is but a sign, and many signs may be used to signify the same thing. In statutes, the sense signified is the law; the letter is but its servant or its vehicle. Language is so copious and flexible that when general words are used there is an absence of precision, and all words and collocations of words admit of more than one interpretation. In the construction of remedial statutes, while the meaning of the words is not ignored, it will be subordinated to their general effect in combination in a whole act or series of acts, read in the light of all the pertinent facts of every nature of which the courts take judicial notice. Liberal construction of any statute consists in giving the words a meaning which renders it more effectual to accomplish the purpose or fulfill the intent which it plainly discloses. For this purpose, the words may be taken in their fullest and most comprehensive sense. Where the intent of the act is manifest, particular words may have an effect quite beyond their natural signification in aid of that intent.”
Our
Again, this court in Yakel v. State, 30 Texas Crim. App., 391, said: “Statutes should be so construed as to prevent mischievous consequences. Such construction finds itself supported in the good order of society, protection of the weak against the strong, and should be favored, and more especially if such a construction be in opposition to one that would tend to bring about evil results. People v. Garrett (68 Mich., 487), 36 N. W. Rep., 234; Holmes v. State, 88 Ind., 145; Am. & Eng. Ency. of Law, p. 702, note 2. The purpose and object of the Legislature in enacting the statute being shown, it is the duty of the court to so construe it as to conform to that intent and carry out such purpose.”
In Albrecht v. State, 8 Texas Crim. App., 313, this court held: “If a reasonable construction of the language would tend to effectuate this purpose, and another construction, equally as reasonable, would have a contrary tendency, under well-established canons of construction, courts should not hesitate in choosing the former to the exclusion of the latter. Intention frequently controls express language in the construction of a statute. Walker v. State, 7 Texas Crim. App., 245.”
Again in Sartain v. State, 10 Texas Crim. App., 651, this court said: “Courities are not confined to the literal meaning of the words employed, in the construction of statutes, but as was said in Burgett v. Burgett, 10 Rep., 221, the intention of the law-makers may be collected from the cause or necessity of the act; and statutes are sometimes contrary to the literal meaning of the words. It has been decided that a thing within the letter was not within the statute, unless within its intention. The letter is sometimes, restrained, sometimes enlarged, and sometimes the construction is contrary to the letter. 4 Bac. tit. Statute, 1, secs. 38, 45, 50. Every statute should be construed with reference
Now I go to the bond itself in this case and quote it. It is:
“The State of Texas v. Joe Bug Roquemore. No. 2929. In the District Court of Angelina County, Texas.
“Know all men by these presents: That, whereas, Joe Bug Roquemore, defendant in the above entitled and numbered cause, was heretofore, on the 12th day of May, A. D. 1909, convicted in this cause for the offense of murder in the second degree, and his punishment assessed at confinement in the State penitentiary for a period of fifteen years; and, whereas, on the 21st day of May, A. D. 1909, the defendant‘s motion for a new trial was by the court overruled, to which order and judgment of the court the defendant excepted and gave notice in open court of appeal to the Court of Criminal Appeals of the State of Texas; and, whereas, the court thereupon fixed the amount of the bond of the defendant pending said appeal at the sum of Eight Thousand ($8000.00) Dollars; now, therefore, we, Joe Bug Roquemore as principal, together with.... and..........as sureties. acknowledge ourselves jointly and severally indebted to the State of Texas in the sum of Eight Thousand ($8000.00) Dollars, conditioned that the said Joe Bug Roquemore, principal herein, who stands charged with the offense of murder in this court, and who has been convicted for the offense of murder in the second degree in this court upon a trial of said charge, shall appear before this court from term to term and from day to day of the same, and not depart therefrom without leave of this court in order to abide the judgment of the Court of Criminal Appeals of the State of Texas in this case. (Signed) Joe Bug Roquemore, P. M. Sanders, Jas. W. Christian, W. P. Clevinger, W. G. Watkins, A. J. Murphy, Dr. W. T. Castleberry, R. B. Cleninger, J. P. Clevinger, W. R. McLain.”
This bond is in substantial if not literal compliance with the form prescribed by our statute.
Now, what is the condition of this bond? It is: “Conditioned that said principal shall appear before this court (the District Court) from term to term and from day to day of the same and not depart therefrom without leave of this court in order to abide the judgment of the Court of Criminal Appeals of the State of Texas in this case.” What is the
In my judgment to hold that the effect of that bond, upon the reversal by this court of said case, is to turn the appellant scott free, and that it does not require that his sureties shall produce him before the District Court to stand another trial, not only would do violence to the proper construction of said bond and the law, but it would be the reverse of what was intended and meant by the Legislature. As said by Judge Davidson in Yakel v. State, supra, “Statutes should be so construed as to prevent mischievous consequences.” And again, as said in Albrecht v. State, supra: “If a reasonable construction of the language would tend to effectuate this purpose, and another construction, equally as reasonable, would have a contrary tendency, under well established canons of construction, courts should not hesitate in choosing the former to the exclusion of the latter.” And as again said in Whisenhunt v. State, supra: “The intent and meaning should be followed, although it may seem to be contrary to the letter of the statute. Statutes are to be con-strued according to the intentions of the makers, if these can be ascertained with reasonable certainty, although such construction may seem contrary to the ordinary meaning of the letter of the statute.”
There is nothing in the condition of this bond, nor in our statute, which, to my mind, in any way points to the fact that when this court reverses a felony conviction and orders him to again be tried, and the appellant has prevented his confinement in jail, pending appeal, and has given no bail bond in the lower court prior to his conviction, that he should go scott free. On the contrary, in my judgment, the only reasonable construction, and I believe it was the clear intention of the Legislature, that he is to appear, and his bondsmen are required to pro-duce him before the lower court, when his case is called for trial again and there from day to day and term to term keep him until he is properly convicted or discharged by that court. To hold otherwise, in my opinion, would not only do violence to the proper construction of said bond, but would be the reverse of what was intended and meant by the Legislature. If Roquemore had not given this appeal bond, unques-
The form of an appeal recognizance in a misdemeanor case (
The Weiseman case from Wilbarger County, recently decided by this court, is entirely correct, and this opinion by me is not in conflict there-with. Nor is it in support of Judge Harper‘s opinion herein. The sole question in the Weiseman case on this question was: When one indicted for felony had duly made a bail bond before trial, then tried and a ver-dict of guilty rendered, but set aside and a new trial granted by the trial court at the same term, his bail bond was held to still be in force after the new trial was granted. The question in this case was stated in the Weiseman case, but as stated therein expressly not decided.
Certainly age alone should not make any dictum or wrong decision the law. The law itself should prevail over any decision, and especially a wrong decision, however aged it may be. If that should not be the case, then surely this court should not overrule, as it does in effect, the case of O‘Brien v. State, 6 Texas Crim. App., 665, which is this day correctly done in the case of Sam Davis v. State, for that decision is seven years older than the decision in the Wells case.
In my opinion this case should be affirmed.