FRANK LANDRY v. THE STATE.
No. 1970.
Court of Criminal Appeals of Texas
Decided June 19, 1912.
Rehearing denied October 16, 1912.
67 Tex. Crim. 615
In the absence of a statement of facts or bill of exceptions, it must be presumed that the action of the lower court was in every way valid and legal.
Appeal from the Criminal District Court of Dallas. Tried below before the Hon. Robt. B. Seay.
Appeal from a conviction of murder in the first degree; penalty, imprisonment for life.
The opinion states the case.
A. S. Baskett, for appellant.
C. E. Lane, Assistant Attorney-General, for the State.
PRENDERGAST, Judge.—The appellant was convicted of murder in the first degree and given a life sentence.
There is neither a statement of the facts nor bill of exceptions. The only questions attempted to be raised are by the motion for new trial. None of them are of such a nature as that we can consider them in the absence of a statement of facts. This court uniformly, under such circumstances, holds that it must presume that the action of the lower court was in every way valid and legal.
The judgment is affirmed.
Affirmed.
DAVIDSON, Presiding Judge, not sitting.
[Rehearing denied October 16, 1912. Reporter.]
Another difference we would call attention to. Under the common law, and later under the English statute law, there was first tried the guilt or innocence of a person charged with crime, and the trial judge later fixed the penalty, and it was in the sentence pronounced by the judge alone the punishment to be assessed was announced and fixed. In our Federal practice this rule is still followed. In the Federal courts a jury is empaneled, and the guilt or innocence of a prisoner is adjudged by them, they having nothing to say as to the punishment to be undergone for the crime. Our Federal judiciary however is bound down by fixed minimum and maximum punishments that the judge can assess, and this he does in accordance with the circumstances attendant upon the commission of the offense, while under the common law the judge in assessing the penalty was bound within no limits except such as had been established by precedents. Our judges, under the system of jurisprudence in force in this State, have no such power or authority as is exercised by the Federal judges, much less thаt originally exercised by the judges under the common law in England. With us the jury in passing on the guilt or innocence also assess the punishment to be undergone for such offense, if the prisoner is adjudged guilty, and our judges in pronouncing sentence can neither alter nor amend, increase nor diminish the punishment, but must assess the penalty as fixed by the jury. So the judgment or sentence under the law in our system has not the office of a judgment or sentence under the common law, nor even that of a Federal Court sentence, as in our first Code it was provided: “They (the jury) in their verdict shall assess the punishment in all cases where the same is not absolutely fixed by law to some particular penalty.” (Art. 626, Willie‘s
As to the wisdom of the framers of our organic law in giving to one department of government the authority to try offenses and assess the punishment therefor, and to another department the authority to remit the punishment, perhaps, is not for us to judge or discuss, but only to decide whether or not this has been done. Yet a careful and thoughtful student of judicial history is bound to recognize that there were many good reasons therefor, and it relieves the judiciary of much importunity, charges of favoritism, if not more serious charges.
Another ground equally untenable as the one that the court has the inherent authority by what is termed suspension of sentence to relieve a person legally convicted of crime of the punishment fixed by law, is that the words “after conviction” mean after the sentence has been pronounced, and that the Governor has no right to pardon until the court has pronounced sentence. As authority for this contention, we are cited to the case of Arcia v. State, 26 Texas Crim. App., 193, and the cases since that time following that decision. Now what is it the court holds in the Arcia case? That the question may be clearly presented we copy from that opinion:
“But the question here presented is, had the witness, at the time he was offered as such, been convicted of felony, within the meaning of our code, sentence not then having been pronounced against him. In the absence of any statutory provisions affecting this question, we would hold, in accordance with what seems to be the well
settled rule, that a verdict followed by a judgment, renders the conviction complete, and the disqualification at once attaches, but in no casе attaches until judgment has been rendered upon the verdict. (Desty‘s Am. Cr. Law, 49b, note 11; 1 Whart. Ev., sec. 398, note 6.) “There are, however, some peculiar provisions in our code, which, we think, require more than a verdict and judgment to be shown, in order to establish a forfeiture of civil rights. Under our code, in all felony cases, a sentence must follow the judgment. This sentence is distinct from, and independent of, the judgment, and is, in fact, the final judgment in the cause. It must be pronounced and entered in all felony cases, except in a capital case, when the death penalty is assessed, before an appeal can be prosecuted. (Code Crim. Proc., arts. 791, 792, 793.) It is the sentence, therefore, and not the judgment, which, under our code, concludes the рrosecution in the trial court, and until it has been pronounced it can not be said that the conviction in the trial court is complete, so as to work a forfeiture of civil rights.” And it might be added that if a man appeals, the sentence does not forfeit his civil rights, but the judgment of affirmance by this court.
Thus it is seen that the court was not discussing the meaning of the words “after conviction” as used in the Constitution of 1845, and in all our Constitutions since that date, nor when the power of the Governor to pardon attached. In that case Judge Willson limits the decision as it affects the civil rights of the person adjudged guilty of crime and bases it upon the peculiar wording of our statutes, and the fact that sentence must now be pronounced before the right of appеal accrues, not only intimating but stating plainly that he would have otherwise held but for these peculiar provisions of the code. When the Constitution with this clause to pardon, to reprieve was adopted, the law did not require, in fact did not permit sentence to be pronounced until after appeal and the judgment of the Appellate Court had been rendered. The
“If the jury find him—(the prisoner) guilty, he is then said to be convicted of the crime whereof he stands indicted; which conviction may occur two ways: either by his confessing the offense and pleading guilty, or by his being found so by the verdict of his country.” (4 Black. Com. 262.) The same author says: “The plea of autrefois acquit, or a former conviction for the same identical crime, though no judgment was ever given or perhaps will be (being suspended by the benefit of clergy or other causes), is a good plea in bar to an indictment.” (4 Black. Com. 336.) In 1 Inst. 391, it is said: “The difference between a man attainted and convicted is, that a man is said convict before he hath judgment; as, if a man be convict by confession, verdict or recreancie, and when he hath his judgment upon the verdict, he is said to be attaint.” And further it is said by the same writer: “So as by conviction of a felon, his goods and chattels are forfeited; but by attainder, that is, by judgment given, his lands and tenements are forfeited and his blood corrupted, and not before.” In Jacob‘s Law Dictionary, 163, it is said: “There is a great differenсe between a man convicted and attainted, though they are frequently, though inaccurately, confounded together;” and in the same work it is said: “Convict, convictus—he that is found guilty of an offense by verdict of a jury. Crompton saith that conviction is either when a man is outlawed, or appeareth and confesseth, or is found guilty by the inquest; and when a statute excludes from clergy persons found guilty of felony, etc., it extends to those who are convicted by confessions. (2 Cromp. Just. 9.)” “Judgment amounts to conviction, though it doth not follow that
every one who is convicted is adjudged.” (2 Cromp. Just. 63, tit. Convict and Conviction.) Bishop says: “The word ‘conviction’ ordinarily signifies the finding of the jury, by verdict, that the prisoner is guilty. When it is said there has been a conviction, the meaning usually is, not thаt sentence has been pronounced, but only that the verdict has been returned. So a plea of guilty by the defendant constitutes a conviction of him.” The same author says: “A conviction, in ordinary legal language, constitutes a plea or verdict of guilty, and it is immaterial whether or not final judgment has been rendered thereon.” (2 Bish. Cr. Law, sec. 903; 1 Bish. Cr. Law, sec. 963.) See also, on this point, People v. March, 6 Cal., 543; People v. Goldstein, 32 Cal. 432; Blair‘s Case, 25 Gratt., 850; Commonwealth v. Williamson, 2 Va. Cas., 211; Shepherd v. People, 24 How. Pr., 38; Commonwealth v. Lockwood, 109 Mass., 323; State v. Alexander, 76 N. C., 231; Commonwealth v. Richards, 17 Pick., 295; Nason v. Staples, 48 Me., 125; United States v. Gilbert, 2 Sum., 40; 2 Hawk. P. C., 36, secs. 1, 10; United States v. Watkinds, 6 Fed. Rep., 152; Bouvier‘s Law Dict., verb. Conviction.
The foregoing references show that the ordinary meaning of the word “conviction” is the verdict of guilty pronounced by a jury. As said by Read, J., speaking for the court in State v. Alexander, supra: “The word is ordinarily used to denote the verdict of the jury, guilty. How did the jury find? Guilty; or they convicted him. What did the judge do? Sentence him to be hanged. This is the language ordinarily used in such matters, both in conversation and in books, law and literary. It is never said that the jury sentenced him nor that the judge convicted him.” (76 N. C., 231.)
And in Shepherd v. The People, 24 How. Pr., 401, we find the following excerpt quoted approvingly:
“In 1st Inst., 391, a., it is said: ‘The difference between a man attainted and convicted, is, that a man is said convict before he hath judgment, as if a man be convict by confession, verdict or recusance; and when he hath his judgment upon the verdict he is said to be attaint.’ It is further said: ‘By a conviction of a felon, his goods and chattels are forfeited; but by attainder, that is, by judgment given, his lands and tenements are forfeited, and his blood corrupted, and not before.’ So in Jacob‘s Law Dict. (Attained), it is said: ‘Attainder of a criminal is larger than conviction; a man is convicted when he is found guilty or confesses the crimes before judgment had, but not attainted till judgment is passed upon him.’ This shows the technical common law definition of the word convict or convicted; a felon was convicted by the verdict of a jury, he was attainted by the judgment rendered on the verdict.”
In the 9th Vol. of Cyc., page 865, the general definition of the word “conviction” is given as: “The finding of a person guilty by a verdict of a jury; that legal proceeding of record which ascertains the guilt of the party, and upon which the sentence and judgment
Francis v. Weaver, 76 Md., 457, 467, 25 Atl., 413; Com. v. Gorham, 99 Mass., 420, 422 (quoted in Com. v. Kiley, 150 Mass., 325, 226, 23 N. E. 55; Com. v. Lockwood, 109 Mass., 323, 330, 12 Am. Rep., 699). Blaufus v. People, 69 N. Y., 107, 109, 25 Am. Rep., 148; Schiffer v. Pruden, 64 N. Y., 47, 52; Messner v. People, 45 N. Y., 1, 12 (citing 4 Bl. Comm., 362; Bouvier L. Dict.); State v. Alexander, 76 N. C., 231, 232, 22 Am. Rep., 675 (quoted in Ex parte Brown, 68 Cal., 176, 180, 8 Pac., 829).
Wilmoth v. Hensel, 151 Pa. St., 200, 25 Atl., 86, 91, 31 Am. St. Rep., 738 (citing Smith v. Com., 14 Serg. & R. (Pa.), 69); White v. Com., 79 Va., 611, 615 (quoting 1 Bishop Cr. L., sec. 348); Hartley v. Henretta, 35 W. Va., 222, 227, 13 S. E. 375 (quoting Bouvier L. Dict.); United States v. Watkinds, 6 Fed. 152, 158, 7 Sawy. 85 (quoting Bishop Stat. Cr., sec. 348).
Bouvier L. Dict, (quoted in Fanning v. State, 47 Ark., 442, 443, 2 S. W., 70; People v. Rodrigo, 69 Cal., 601, 605, 11 Pac., 481; Hartley v. Henretta, 35 W. Va., 222, 13 S. E. 375). See also White v. Com., 79 Va., 611, 615, where it is said, referring to this definition: “The first of the definitions here given undoubtedly represents the accurate meaning of the term, and includes an ascertainment of the guilt of the party by an authorized magistrate in a summary way, or by confession of the party himself, as well as by verdict of a jury.”
Com. v. Richards, 17 Pick. (Mass.), 295, 296 (quoted in Com. v. Lockwood, 109 Mass., 323, 328, 12 Am. Rep., 699): “Conviction may accrue in two ways, either by his (defendant‘s) confessing the offense and pleading guilty, or by his being found so by the verdict of his country.” 4 Bl. Comm., 362 (quoted in Healey v. Martin, 33 Misc. (N. Y.), 243, 248, 68 N. Y. Suppl., 413; Burgess v. Boetfeur, 8 Jur., 621, 12 L. J. M. C., 122, 7 M. & G., 481, 8 Scott N. R., 194, 49 E. C. L., 481). Conviction is on confession or verdict. 6 Dane Abr., 534, 536 (quoted in Com. v. Lockwood, 109 Mass. 323, 328, 12 Am. Rep., 699). Crompton saith that conviction is either when
Distinguished from “judgment” or “sentence.” “The ordinary legal meaning of ‘conviction’ when used to designate a particular stage of a criminal prosecution triable by a jury, is the confession of the accused in open court, or ‘the verdict returned against him by the jury, which ascertains and publishes the fact of his guilt; while ‘judgment’ or ‘sentence’ is the appropriate word to denote the action of the court before which the trial is had, declaring the consequences to the convict of the fact thus ascertained.’ Com. v. Lockwood, 109 Mass. 323, 325, 12 Am. Rep. 699 (cited or quoted in Quintard v. Knoedler, 53 Conn. 485, 487, 2 Atl. 752, 55 Am. Rep. 149; State v. Barnes, 24 Fla. 153, 4 So. 560; State v. Moise, 48 La. Ann. 109, 121, 18 So. 943, 35 L. R. A. 701; People v. Adam, 95 Mich. 541, 543, 55 N. W. 461; People v. Lyman, 33 Misc. (N. Y.) 243, 248, 63 N. Y. Sup. 331; State v. Alexander, 76 N. C. 231, 232, 22 Am. Rep. 675; Com. v. Miller, 6 Pa. Super. Ct. 35, 40; In re Freidrich, 51 Fed. 747, 749). See also Hackett v. Freeman, 103 Iowa, 296, 299, 72 N. W. 528 (citing Schiffer v. Pruden, 64 N. Y. 47, 52; Blair v. Com., 25 Gratt. (Va.) 850; Bishop Cr. L., sec. 361; McClain Cr. L., sec. 110.
Many other authorities might be cited giving the meaning of the word as defined above, and to give it a larger оr more comprehensive meaning, authority must be found in the statutes of the State, and in the statutes of our State instead of there being authority found to give to the words “after conviction” a more comprehensive meaning than was known at the common law, or their common signification at the time they were placed in the Constitution, we find express statutory authority to the contrary, giving to the words the common law meaning, by expressly declaring that at the time of sentence, that in bar of sentence, if he produce a pardon from the proper authority, no sentence should be pronounced but he should be discharged. See article 688,
Thus it is seen that the terms “after conviction” in our Constitution do not embrace the sentence but simply mean the determination of guilt by the tribunal authorized to try the issue of guilt or inno
Appellant failed in his brief to draw the distinction between the legal meaning of the words “conviction” and “attainder,” and for this reason has fallen into the error he did. Under the common law a man did not forfeit his civil rights until after he had been attainted, and this followed the sentence, whereas he was convicted of the offense by verdict of the jury, that is, by the determination of his guilt or innocence by the tribunal authorized to sit in judgment on that issue. In the Arcia case, supra, this court limited its holding to a forfeiture of civil rights, and specifically so stated in the opinion, and has so held in all subsequent opinions, and the decisions cited are not in conflict with this opinion in this case, when the particular provision of the Act of the Thirty-Second Legislature, the one under consideration, is considered, for the Legislature by that Act has taken from a defendant the right of appeal if the court suspends sentence under its provisions, and the “conviction” becomes a finality, and the Act proceeds on the theory that a chance will be given him for reformation, and release him from punishment for a crime he has committed as an incentive to reform.
And while counsel in their brief take issue with us wherein we stated, that by the provisions of the Act, the court was not only authorized to remit all punishment, but restore him to all his privileges, we do not deem it necessary to discuss this at length. It is true that in the Arcia case it was held that a defendant‘s civil rights were not forfeited until sentence was pronounced and this court had acted on the appeal, if appeal was not waived, but by this Act of the Legislature the right of appeal was taken away, and it is contemplated that no sentence will ever be pronounced, although the guilt of the accused has been finally determined and his punishment assessed. Had our laws not provided for sentence and an appeal to this cоurt, the holding of Judge Willson would have been wholly different, as is demonstrated by the opinion itself, and would have been in accord with the rule at common law, which was that if a person was adjudged guilty of an offense, and he prayed and was allowed the benefit
Counsel in their motion and brief admit that if the Act “does attempt to confer pardoning power on the judge, then no intelligent lawyer would deny its unconstitutionality.” We will then consider the object, purpose and effect of the Act. It provides that when there is a conviction for any felony (except certain enumerated felonies) and the punishment assessed by the jury is not more than five years, the court shall enter its judgment so finding, but if the jury also finds that the defendant has never before been convicted of any felony, upon application of the defendant the court shall hear testimony, and if in his opinion the defendant has never before been convicted of a felony, and is a proper subject fоr clemency (this being a matter left entirely within the discretion of the judge) the court may decline to pronounce sentence, and release the defendant on his own recognizance. It further provides though if at any time, within the time prescribed by the Act, the defendant shall again be convicted of a felony, or a misdemeanor involving moral turpitude, the court shall then proceed to sentence the defendant upon the original judgment of conviction. Thus it is seen that this Act is drawn in accordance with the practice of the English courts under the “benefit of clergy” plea as known in the eighteenth century (just before its abolishment in that country), except there is added to the provisions the right to later recall the judgment of clemency and inflict the original punishment for some act thereafter committed. This was never known, or practiced at common law, and as said by the North Carolina court, “We search in vain for authority in the text-books of the law for a precedent for the court to pronounce judgment on the then conditions as they exist, and if subsequently after the term conditions alter, to withdraw the judgment then entered and pronounce an entirely different judgment.” But as before stated, the common law plea of benefit of clergy never became a part of the jurisprudence of this State, and unless the sovereign will shall change the provisions of our Constitution, it never can be engrafted thereon. But a conditional pardon was known to the cоmmon law and in practice in England at the date of our independence, but it could be granted by the King alone. Mr. Chitty in his Criminal Law (p. 773) says that his Majesty could grant a pardon upon any condition, and if the beneficiary does not perform the condition or conditions, it will be void, and he may be brought back and made to suffer the original penalty.
What is a pardon? That term has been defined and has a well understood meaning. In Carr v. State, supra, this court held: “A pardon is a remission of guilt.” (1 Bishop Cr. Law, section 898.) It is full, partial or conditional. Full, when it freely and unconditionally absolves the party from all the legal consequences of his crime and of his conviction, direct and collateral; including the punishment, whether of imprisonment, pecuniary penalty, or whatever else the law has provided. (1 Bishop Cr. Law, section 916.) Partial, where it remits only a portion of the punishment, or absolves from only a portion of the legal consequences of the crime. Conditional, where it does not become operative until the grantee has performed some specified act, or where it becomes void when some specified event transpires. (1 Bishop Cr. Law, sec. 914.) In the
Could the meaning of the Act of the Thirty-Second Legislature be more clearly expressed and what does this Act of the Legislature attempt or propose to do but exempt a man from the punishment assessed against him for a crime he has committed, upon the sole ground that he go and sin no more? It has no other object, purpose or effect, and by giving it a different name or designation does not change its legal meaning or effect, and the technical hair splitting attempted in an effort to sustain the law does credit to the ingenuity of counsel, but such fine spun distinctions to evade the highest law of any land (its Constitution) can not be given countenance in any court, else the safeguards thrown around our citizenship by the Constitution, protecting them in their life, liberty and property, could be construed out of existence by a judiciary grasping after authority and power, as said by Mr. Cooley. A long list of authorities will be found collated on pages 1559 and 1560, 29 Vol. of Cyc., and a long list of Texas cases will be found in Buckley‘s Criminal Digest, beginning on page 1229, relating to pardons, etc., and the meaning of the word.
Thus it is seen that the object and purpose of the Act in question, and the sole object and purpose, is to grant to a defendant adjudged guilty of crime, and his punishment assessed, immunity from the punishment on condition that he will not violate any law of the land for a given period of time, and is nothing more nor less and performs the office of a conditional pardon, to become absolute upon compliance with the conditions. This, in the language of appellant‘s counsel, we think no intelligent lawyer would deny, and if so, it necessarily follows the Act is unconstitutional.
That portion of appellant‘s brief relating to the power of a court to grant a new trial need not be discussed, because the Act in question does not contemplate another trial of the defendant for the offense, but if he complies with the conditions upon which he is released, the Act contemplates and requires the court to discharge him, regardless of the fact that his guilt has been established in a court of competent jurisdiction beyond question. But we will say that the rule of law is, where no motion for new triаl has been filed, after the end of the term at which the judgment was entered, no court has the power or authority to grant a new trial or change its judgment at a subsequent term. Mr. Chitty says: “The judge‘s judicial authority terminates at the conclusion of the session. . . .
Freeman on Judgments, Sec. 69, lays down the rule: “During the term wherein a judicial act is done, the record remaineth in the breast of the judges of the court, and in their remembrance, and therefore the roll is alterable during the term, as the judges shall direct, but when the term is past, then thе record is in the roll and admitteth no alteration, averment or proof to the contrarié. (Co. Litt., 260; 3 Black. Comm., 407.) Of the law thus laid down the only part remaining unshaken is that during the term the proceedings remains in the breast of the judges. Not only the records during that term are subject to revision of the court, but the judgment itself may be altered, revised or revoked, as well as amended in respect to clerical errors and matters of form. As a general rule, the judgment can not be amended after the term at which it was rendered. The law does not authorize the correction of judicial errors under the pretense of correcting clerical errors. To entitle a party to amend a judgment or decree, he must establish that the entry as made does not conform to what the court intended it should be when it was ordered.” However, the rule in Texas is statutory. Article 2025 Revised Statutes, reads: “All motions for new trial, in arrest of judgment, or to set aside a judgment, shall be determined at the term at which said motion is made.” And Article 2023 provides, that the motion must be made during the term at which the judgment was rendered. It is useless to discuss the decisions of those states where the statute authorizes a motion to be filed and heard at a later term, for no one doubts the authority of the Legislature to so provide. In the absence of all legislation, a judgment becomes final when the term is ended, and especially is this true in Texas for the law so provides.
The other questions raised in appellant‘s brief relate to matters discussed in the companion case to this, decided by Presiding Judge Davidson, and we will not discuss them, but leave them to be treated by him.
But there is another section of our Constitution appellant seems to have wholly overlooked. Section 2 of Article 16 commands the Legislature to enact certain laws in the following language: “Laws shall be made to exclude from office, serving on juries, and from the right of suffrage, those who may have been or may hereafter be convicted of bribery, perjury, forgery, or other high crimes.” The Legislature in obedience to this command has passed laws in accordance with its provisions, but this Act of the Legislature, although a person had been adjudged guilty of forgery or bribery, if appellant‘s construction is corrеct, and they suffer no disability by reason of such conviction, would be in direct conflict with this provision of the
At the risk of again being criticised for stating that we sympathize with the purpose of the law to give first offenders a chance to reform, yet we say we heartily approve legislation with that object in view, but the terms and provisions of such legislation must be in accordance with the provisions of our Constitution. A law can be drawn where if on the trial it appears that it is the first offense, and the evidence convinces the judge that the best interests of society, of the individual, and of the State would be served if the hands of the law were stayed, and the person adjudged guilty be given a chance to reform, to recommend to the Governor a conditional pardon, and we are sure that in every deserving case the recommendation would be complied with by the Governor. The peoplе had the confidence in the Governor to place this power in his hands, and we too have the same confidence. The law could require that he have the court stenographer make a copy of the testimony heard, and require the judge to forward it to the Governor, with his recommendation, and provide that the prisoner be not conveyed to the penitentiary until the Governor had acted on the recommendation. Thus the end sought may be reached in a way not violative of our Constitution, and all the good features in the law be retained. But while we sympathize with the purposes of the law, and we think its provisions, if they could be carried out, might and probably would be productive of much good, yet the peoplе of this State wrote and adopted their Constitution, granting their power to whom they deemed proper, and if it is altered or changed in any provision, it must be done by them, and not be frittered away by technical judicial construction, and so long as we shall remain on the bench, no matter how our sympathies may be, and no matter who may seek to exercise authority not given them, we shall take the Constitution as our guide and uphold it in all its provisions, for it is the supreme law of the land. In doing so, we are simply doing our duty, and we will not countenance usurpation of authority by the judiciary any more than we will in any other department of government.
The motion for rehearing is overruled.
Overruled.
PRENDERGAST, Judge.—When the original opinion herein, and in the companion case were delivered, declaring the Act quoted in the original opinion unconstitutional, I had so much doubt, and expressed it, I was then unwilling to concur in those opinions on that question. Since then upon a more thorough investigation and consideration of the question, I am convinced that said Act is unconstitutional, and I therefore concur in the opinions on that question.
The object and purpose of the Act is so commendable I regret exceedingly the Constitution, as it now is, prevents its being enforced. Perhaps in the wisdom of the Legislature some constitutional way will be devised to accomplish the desired purpose. If not, then the people if they desire, can so amend our Constitution as to clearly authorize it.