Lead Opinion
Appellant was tried before a jury for unlawfully carrying a pistol, and on conviction his punishment was affixed at a fine of $100.
Appellant complains that the court refused to consider his motion for a new trial; which appears to have been filed three days after the conviction. Hnder article 839, C. C. P., the court is given discretion' to hear a motion for new trial in felony cases after two days, but the requirement that they should be filed within two days appears to be mandatory in misdemeanor cases. Banks v. State,
The record contains a statement of facts and bills of exception. The right to consider these in the absence of a motion for a new trial is challenged by the State. In Gant’s case,
We think it is a mistaken view to assume that this rule controls the authority of this court to pass upon questions disclosed in the record of appeals. The Supreme Court has not undertaken to make rules for this court for that purpose, and it is a mistake to hold that those made for other courts would have such effect. Even if the rule mentioned had been intended to apply to this court, and given the effect accorded it in Gant’s case, it would have been, in our judgment, beyond the power of the Supreme Court. It has no power to makke rules inconsistent with legislative enactment. Johnson v. State,
Such we understand to be the view of the Supreme Court. Railway Co. v. Beasley,
“When the trial court overrules or sustains exceptions to the petition, admits or rejects evidence, or gives, refuses, or qualifies instructions, and such action becomes matter of record, being the action of the court itself, it is subject to revision. The aggrieved party is not bound to ask a revision of such ruling in a motion for new trial.”
Our conclusion from the foregoing authority is that where an appeal is prosecuted, this court is required by the law to consider questions raised by bills of exception properly prepared and made a part of the record, and a statement of facts prepared and filed in compliance with the statute, and that it is not absolved from this duty by the failure of the defendant below to file a motion for a new trial.
Acting on this conclusion we proceed to consider the questions thus raised in this case.
It appears that appellant while at work m an oil mill received information that he was in danger of attack from certain parties; that on his way home from work he purchased a pistol and carried it to his home, and after he reached home, before he had taken the pistol off of his person, some people came to his residence after night and attracted his attention, and he walked out to ascertain who they were and what was wanted, and that while doing so he was arrested with the pistol- in his possession. There was a sharp issue of fact as to whether he stepped off of his premises or not, it being claimed by the State that he did walk a few feet off of his premises, and this the defendant denied. The officer who arrested him said that the appellant’s house was from five to eight feet back from the street; that there were parties in front of his house and that the officer called these parties and that the appellant walked off of his porch and came off of his yard and was arrested. We quote from the officer as follows: “About that time the said two negroes in front of the house drove off in the buggy .from where they were stopping, and then the defendant came around his house from his back porch, and came walking along towards where I was when I had called to Burton and Bice, and when *429 defendant had come off his yard towards me I spoke to him and he started back and I grabbed him, and Mr. Keith also stepped np and took hold of him and we searched him right there and took a pistol off his person. Defendant’s house is east of that street about five to eight feet, and when I caught defendant and arrested him there with Mr. Keith he was not inside of his yard but had advanced from off his yard towards me until he had gotten off his yard into the street. He was in the street when I arrested him, for I never did leave the street myself and he was in the street when I grabbed him. He had started back a little when I caught him toward the house but was outside his yard.” The appellant and several witnesses testified that he did not go outside of his yard. The owner of the premises which appellant was occupying as a tenant testified that the ground in front of appellant’s house where the travel passed it was not in the street but on the premises occupied by appellant. He said:. “There is a break, or ravine, at the west side of that street right opposite to his house, which so obstructs or impairs the street there as to cause the travel along there right opposite his house to slightly encroach upon the defendant’s yard; that is, what appears to be the east side of the street is on a part of defendant’s yard for perhaps just a few feet.”
It is doubtful in view of this testimony whether the proof showed that appellant was off his premises with the pistol, and even if he was it is not clear that his act in stepping out of his yard under the circumstances, with the pistol on his person, would show an offense. The court on this subject charged the jury as follows: “If you believe from the evidence beyond a reasonable doubt that the defendant had on his person a pistol as charged but that he was on his own premises and not in the street, then the defendant would be guilty of no offense under our laws.” This charge was excepted to and is not accurate, because it puts the burden of proof on appellant to prove his defense. The appellant also requested a charge submitting this issue in a more accurate and in an affirmative manner, and in our judgment the bill of exceptions to -the paragraph of the court’s charge mentioned in connection with the refusal of this special charge presents error. Branch’s Ann. P. C., p. 560, see. 975.
And, because of this error, it is ordered that the judgment of the lower court be reversed and the cause remanded.
Reversed and remanded.
Concurrence Opinion
(concurring). — The judgment herein was reversed and remanded during the last term of the court, the *442 opinion being written by Judge Morrow. In that opinion I concurred. During vacation of the court Judge Prendergast filed a lengthy dissenting opinion. He lays down the proposition that no error, or supposed error, can be urged on appeal which is not set out in the motion for new trial. To this proposition I can not give my assent under our statutes. Article 744 of the Code of Criminal Procedure reads as follows: “On the trial of any criminal action the defendant, by himself or counsel, may tender his bill of exceptions to any decision, opinion, order or charge of the court or other proceeding in the case; and the judge shall sign such bill of exceptions, under the rules prescribed in civil suits, in order that such decision, opinion, order or charge may be revised upon appeal.”
Plainly, this statute gives' the accused the right to reserve the provided exceptions “in order that such decision, opinión, order or charge may be revised upon appeal.” It would seem all sufficiently clear from the terms of the statute that if the party properly takes such exceptions he may have the rulings of the appellate court on appeal. It is not prerequisite or essential that he bring those matters forward in a motion for new trial. The statute does not so require. The court’s attention has been pointedly and specifically called to the matter not only at the time of the rulings by the court and when the exceptions are taken, but again it is called to his attention when the bills of exception are presented to him for his approval. That he may bring these matters forward in motion for new trial does not render nugatory the terms of the statute or deprive the accused of having his questions revised; if the terms of article 744, supra, have been followed. Article 844 of the Code of Criminal Procedure also prescribes that, “If a new trial be refused, a statement of facts may be drawn up and certified and accompany the record as in civil suits. Where the defendant has failed to move for a new trial he is, nevertheless, entitled, if he appeals, to have a statement of facts certified, and sent up with the record.” This does not prescribe that a motion for new trial is necessary, but expressly enacts that it is not. In that" event the exceptions reserved under the terms of article 744, supra, may be revised, in connection with the statement of facts, although a motion for new trial was not filed. It is not obligatory upon the accused to file a motion for new trial. He may do so, or he may not. Whether he does or not is optional with him, and whether he does or not he is, nevertheless, entitled to have a statement of facts sent up with the record and his exceptions and matters of which he complains reviewed in the light of the testimony. It is well" settled that, in the absence of a statement of facts, this court does not review, as a rule, many of the rulings of the trial court. These might be mentioned, but it is not necessary. Many of the cases cited by Judge Prefidergast are not applicable to the law as it is at present. Many of the decisions cited by him go to the effect that assignments of error will not be noticed in criminal cases. Properly understood, those decisions lay down a
*443
correct rule. This court does not consider assignments of error as substitutes for a motion for new trial, but treats such assignments of error as unnecessary. Assignments of error can not take the place of a motion for new trial. This is the extent to which these decisions go. Under article 733, supra, before its repeal, a motion for new trial was requisite unless bills of exception were reserved to the charges asked and refused. Both, that is, bills of exception and motion for new trial, were not, under that statute, requisite or necessary. The matters might be presented either way, that is, by bills of exception or in motion for new trial. That statute only related to charges of the court given the jury, or such as were refused by the court or were omitted from the charge. The decisions referred to by Judge Prendergast mainly apply to the construction of article 733, which has been repealed. It has been understood to be the correct rule, that if exceptions to the charge, to which that article alone applied, are set out either in bills of exception, or are raised upon motion for new trial, they will be considered. It would be useless to review those decisions. Take the Ellington case,
I concur with Judge Morrow in the disposition of the case.
Dissenting Opinion
(dissenting). — The statute (art. 839, C. C. P.) positively requires: “A new trial must be applied for within two days after the conviction; but, for good cause shown, the court, in cases of felony, may allow the application to be made at any time before the adjournment of the term at which the conviction was had. When the court adjourns before the expiration of two days from the conviction, the motion shall be made before the adjournment.”
This court has expressly held this statute is mandatory, and that in
misdemeanor
convictions, motions for new trial can not be filed
*430
nor considered unless filed within two days after conviction. (Banks v. State,
• The appellant did not 'file any motion for a new trial within two days after his conviction. When he attempted to do so later, the court, on the motion of the State, correctly struck out his motion for a new trial and expressly refused to consider it. Hence, the case stands in this court, without any motion for a new trial, and is so stated and treated by the majority opinion.
Hnder such circumstances, this court has heretofore uniformly, and in a great many decisions, held that this court can not consider nor pass on any question not saved and raised by a motion for new trial in the trial court during term time. In other words, that this court can pass only on questions raised by appellant’s motion for new trial, and which must have been presented to and acted upon by the trial court, at the term of conviction.
I will cite and quote some of these decisions. In Keye v. State,
In Veas v. State,
In Harvey v. State,
In Daniels v. State,
In Frazier v. State,
In Tilmeyer v. State,
In Day v. State,
In Vela v. State,
In Taylor v. State,
In Rome Ellington v. State,
In the next case of John Ellington v. State,
In Fifer v. State,
In Wormley v. State,
In White v. State,
In Gant v. State,
In Jones v. State,
The latest decision before the majority opinion herein was in Smith v. State,
In Vinson v. State,
The bills of exceptions to admitted or excluded evidence, or to 'the charge of the court, or to refused charges, or on any other grounds, are not of and within themselves “assignments of error” — they are solely, a necessary basis upon which a claimed error can and must be raised and presented by a motion for a new trial and without which this court can not consider any claimed error. And unless so raised and saved by such motion they are waived and can not be considered by this court.
If this court can not consider “assignments of error” filed in the lower court, not based on grounds of a motion for new trial, then, of course, when no motion at all for new trial is filed and acted upon *435 by the lower court, this court can not do the more absurd thing of considering and passing on questions attempted to be raised by neither “assignments” nor a motion for a new trial.
There are many other decisions by this court exactly to the same effect as those cited and quoted above. It would be idle to cite or quote them.
I have searched diligently to find any case by either the Supreme Court when it had jurisdiction of criminal cases, or this court, where it was ever held contrary to the decisions above. I have not found any such case. No such case is cited in the majority opinion herein. There is none.
Are all these decisions I have cited and quoted above at this late date to be overruled at one fell swoop by a divided court, and that, too, without any reason or authority? In fact, against, and in the face of, both reason and authority? I can not think so. I can not but believe that the majority opinion was rendered in haste without a full investigation and without mature deliberation, and that my associates will correct it at the first opportunity. The law on this point was not even questioned in earlier days. No appellant, and no attorney for him, in those days had the temerity to even contend that this court could go over the heads of the trial courts, and pass on questions not saved and made by his motions for new trials, and not presented to, nor passed on, by the trial judges under such motions. Every judge of this court in every case where the question has been passed on, has expressly and many times, and at all times, held this could not be done.
If what was held by Judge Morrow so recently as February 28, 1917, in Lyle v. State,
Prior to the Act of April 4, 1913, page 276, by which article 1612 of the Revised Civil Statutes of 1911 was amended, that article positively required that in civil cases “the appellant shall in all cases file with the clerk of the court below all assignments of error,” etc. (In the-Revised Statutes of 1895 this article was 1018, and in the Revised Statutes of 1879 it was 1037, and still prior to that it was 1591 of Paschal’s Digest.) This “assignments of error,” as every lawyer in Texas knows, was a separate paper filed -alone with the clerk after the *436 trial of a civil case had been concluded, and most frequently after the court had adjourned for the term, and with which the trial judge had nothing whatever to do, and could not in any way act on. Unless an appellant in a civil case so filed his "assignment of error,” the appellate court had nothing to pass on, and did not pass on any question except a fundamental error. All this is made perfectly clear by reading said article in full in said several revisions of the civil statutes, and the decisions thereunder.
In all criminal cases appealed no such "assignments of error.” has ever been permitted to be filed. In fact, thé statute clearly forbids it. Article 915, C. C. P., prescribes, "an appeal is taken by giving notice thereof in open court and having the same entered of record,” — simply that and nothing more. Then article 916 says: “The effect of an appeal is to.suspend and arrest all further proceedings in.the case in the court in which the conviction was had, until the judgment of the appellate court is received by the court from which the appeal was taken.” This law at first was inexorable. (See Judge White’s Ann. C. 0. P., sec. 1236.) Later it was so amended as that when the papers were lost or destroyed before a transcript of them was made and sent to the appellate court, they could be substituted in the court below— but nothing could be added to, nor taken therefrom. It is as expressed in Holy Writ, "In the place where the tree falleth, there it shall be.” Because of this statute and others this court has always held that an "assignments of error” has no place in this court and can never be considered, and that the motion for new trial must contain all claimed errors which this court can consider. It is true any defendant convicted of either a felony or a misdemeanor can appeal to this court, and in that event is entitled to a statement of facts, without even making a motion for new trial. And it is true that in no case is an appellant compelled to make a motion for a new trial in order to appeal. It is also true that no person on trial in a criminal case is compelled to object to any illegal evidence introduced against him, nor to legal evidence erroneously excluded.. Bor to the charge of the court, nor to any other improper proceeding against him. But if he does not, this court always heretofore has held it can not and will not pass on any such question however erroneous. It is not infrequent that persons convicted of either a felony or misdemeanor, and even when they plead guilty, appeal their cases, and that, too, when they know they, have no ghost of a chance for reversal, and, in fact, set up no ground for reversal. They evidently do this for delay only. They know that thereby they can get a delay of many months — sometimes a year or more. Outside of such delay cases the sole object they have in appealing is to get a new trial from this court. Until the decision herein by the majority, this court has always held that it can not legally, and will not, consider any claimed error, unless the appellant sets up such error by his motion for new trial in the court below and has that court to pass on it. It makes no difference whether that court, during the actual trial, has then passed on the question or not — it must again be *437 presented to the trial court in a motion for new trial, and be acted upon by that court. Everyone knows that in the actual trial the trial judge must pass on many questions on the spur of the moment — without mature deliberation and without time for full investigation — such as arise on the empanelment of a jury, objections to evidence admitted or excluded, objections to his charge, and refusal of special charges— and many other matters which occur during the trial. When these questions are again presented to him in the motion for new trial he has more time and opportunity for deliberation and investigation. The defendant’s attorney, in the meantime, also has time for investigation and can then present the authorities to the judge, and has a much better opportunity thereby to convince the judge of his error, and secure a new trial if entitled to it. It will not do to say nor act on it — well, the trial judge has already during the haste of the trial passed on this question, and, therefore, I will not give him an opportunity to again do so — in fact, I will deny him an opportunity to again pass on it, I will waylay him, and go over his head, direct to the Court of Criminal Appeals, and have that court to give me a new trial — thereby I will get a delay of many months, perhaps a year or more, and in the meantime the witnesses against me may die, get out of the way, or forget. When the State does force me to trial again a year or two hence, I’ll come clear of the crime of which I am guilty, I will thus go unpunished, the law be prostituted, and the courts brought into disrepute.
It will not do to say the trial judge will not on motion for new trial correct his error and grant a new trial, as the law and his sworn duty compels him to do. This is well illustrated in many cases by the judges of this court granting rehearings and reversing themselves. Take as an example the very recent case of Fisher v. State,
This case is a fair illustration of how a trial judge can be "waylaid,” if the decision herein is adhered to. Appellant filed no motion for a new trial as authorized and required by law if he really wanted a new *438 trial, and the lower court was not authorized to act on any, nor did he act on any. By his failure or refusal to file any such motion, he waived his right to do so as effectually and as certainly as if he had in express language done so. He appealed though. He then waited the full twenty days allowed him by the trial judge after adjournment for the term to present to the judge his bills of exceptions and statement of facts. They were approved by the judge on the twentieth day, and on that day then filed. The trial judge then had no power or authority to grant him a new trial, however many errors he had committed, and which if they had been presented to him in a motion for new trial, he would have granted.
I will now show when and how said article 1612, Revised Statutes, was changed by said Act of April 4, 1913, in all civil cases. For a number of years prior to 1913 the people and press of the State so insistently demanded that the Legislature and the Supreme Court, under its constitutional power to make rules for the government of all the courts, should so amend our procedure as to prevent the trial judges of the lower courts from being “waylaid” by the attorneys, and thereby prevent unnecessary appeals and reversals. Both the Legislature and Supreme Court responded, and so enacted laws and rules to meet some of these necessities and demands.
By said Act of April 4, 1913, it amended said article 1612, Revised Statutes. It stated in the caption it amended said article, “and repealing the laws requiring assignments of error in civil cases, and providing that motions for new trials in such cases shall constitute the assignments of error, and repealing all laws in conflict therewith, and • declaring an emergency.” This act was' passed unanimously by both houses and was approved by the Governor and went into immediate effect. That amendment added this proviso: “Provided, that where a motion for new trial has been filed that the assignments therein shall constitute the assignments of error and need not be repeated by the filing of assignments of error; and provided further, that all errors not distinctly specified are waived. . . .” Thereby making the practice in civil cases the same it is in criminal cases, and had been “whereof the memory of man runneth not to the contrary.”
I now come to a discussion of the rules adopted for all the courts by the Supreme Court.
Our Constitution of 1876 for the first time (art. 5, sec. 25, quoted in 2 Court of Appeals Rep., p. 623) expressly conferred the power and duty on the Supreme Court to make rules and regulations for all the courts. This section 25 was amended by the people September 22, 1891 (Constitution, sec. 25, art. 5, by Harris), and as amended made some changes in the original not necessary to now note.
Prior to our Constitution of 1876, our Supreme Court had jurisdiction of all appeals in criminal, as well as civil causes. That Constitution created a new court and named it “Court of Appeals,” took all jurisdiction in criminal causes away from the Supreme Court and conferred *439 it on said “Court of Appeals.” There were then no Courts of Civil Appeals. The whole of our Constitution on the judiciary was amended "by. the people on September 22, 1891, by which Courts of Civil Appeals were created and the name of said “Court of Appeals” was changed to “The Court of Criminal Appeals.” In the meantime the Supreme Court on December 1, 1877, adopted rules for all the courts, and amended and readopted them time and again since then.
It is not amiss to here quote what the Supreme Court through Chief Justice Roberts said- of these rules in Texas Land Co. v. Williams,
In Ratcliff v. State, 29 Texas Crim. App., 248, a question arose as to how a statement of facts should be prepared under the rules prescribed for the District Court. This court held: “The rules above cited are applicable in criminal as well as in civil cases, and are for the government of appeals to this as well as to the Supreme Court. The Supreme Court has the constitutional power to prescribe rules for the government of this court such as the rules cited. Const., art. 5, see. 25.” See also Blackshire v. State,
Neither of the cases of Railway Co. v. Beasley,
After this decision, and after said article 1612 had been amended as stated, the Supreme Court amended the rules so as to conform to said amended statute, and then re-enacted or readopted said rules. The new and amended rules are copied in
In order "to show that the construction I place on said statute and rule is correct, I will cite some of the decisions of the several Courts of Civil Appeals where they have so held from the very time said statute was passed-and said rule exacted down to this date.
In Edwards v. Youngblood,
Even before said amended article 1612 went into effect, practically all of our Courts of Civil Appeals, under the amended and added rules of 1912, had held expressly that the grounds of motions for new trials alone shall constitute the “assignments of error,” and that unless presented and saved in the lower courts hy such motions for new trial, they could not and would not be considered on appeal. I cite some of those cases: El Paso Elec. Ry. Co. v. Lee,
But whether the rules prescribed for the District Court and Courts of Civil Appeals, requiring that no error of the lower court can be considered on appeal unless presented and preserved in a motion for new trial, applies to this court or not, that only such errors can be considered by this court, is too well and long established to be now lightly or at all set aside. The holdings of this court are founded on reason, law and justice. I therefore earnestly protest against the holding in this case, and respectfully dissent.