4 Tex. 64 | Tex. | 1849
The appellant was indicted for the crime of incest with his •own daughter, and foijnd guilty. He appealed to this court, and asks a reversal of the judgment—
1st. Because (iie court belo'w erred in overrulingdiis motion for a new trial.
2(1. The court, erred in tile charge to the jury.
The charge contained in the indictment was so shocking to the moral sense ■of every civilized being, so degrading and humiliating to human nature, reducing man from his boastful superiority of a moral, rational being to a level with the brutal creation, that our pride and respect for our species would not allow us to believe it possible to have been committed in tiiis age and country, unless constrained to yield conviction on the most indisputable proof. Is the proof in this case of that character? In considering the whole structure of the evidence of the. witness, I must unhesitatingly say that it is not; that it does not afford the slightest legal proof that our country lias been degraded by tlie commission of so loathsome, so lieartsickeiiing an offense In onr midst. The language supposed to have been evidence of the offense by no rule of construction known either to the jurist, or to the common-sense use of words could sustain the charge. First, the improbability that this witness heard enough to disclose truly the subject of tlie conversation. If it related to the cause of the difficulty between tlie accused and his wife, it may have referred to a different charge. It might have referred to efforts on the part of the accused to prejudice his daughter against her mother and induce her to believe that the mother, and net the father, was to blame in the difficulty that had disturbed the harmony of tlie family. A single word not heard by the witness might materially have changed what he understood to be tlie purport of what he had heard. Suppose it had been, “You have stated that I have been talking with
It is said, however, that although there may' not have been any legal evidence to sustain the. verdict of the jury, yet an appeal will not be entertained in this court from such a refusal to grant a new trial, for tile want of jurisdiction. Whether the decision of a judge on a motion for a new trial can he revised in an appellate court or not is a’question that has been variously decided. In some States it is considered as entirely addressed to the discretion of the judge, and that it is not competent for an appellate court to revise his decision, whether that discretion has been wisely exercised or not. Such is the rule in the Supreme Court of the United States, the same in the State of Alabama. It was so ruled in the last Stale, not long after the organization of the Supreme Court, in a criminal case; hut its application has been to all cases, civil and criminal. The opinion of the court was expressly placed on the authority of the Supreme Court of the United States. (Phleming v. The State, Minor R., 43.) See Spence v. Tuggle, (10 Ala. R., 538.) by which it will he seen that the same doctrine is still liekl in the Supreme Court of that State. In Virginia a different rule, prevails, sustained by along train of decisions, from Washington’s Reports down to'the present time. The. same doctrine is found to prevail in Tennessee — and the decisions of the.court of original jurisdiction have been again and again revised — and is not questioned. (Keller v. Bevans, Cook R., 89; Rayburn, Adm’r Harbour, 7 Yerg. R., 432; Pawley v. McGunpsey, Id., 502; Hawkins v. Carrol, Id., 505.) Same rule prevails in Kentucky. (Bagby v. Lewis, 2 Mon. R., 77, 78.) It will ho seen that in New York a motion for a new trial is made in the Supreme Court; and it is there decided on • a view of the evidence. They were decided in King’s Bench by a reference to the evidence at nisi prius.
In South Carolina it is the constant practice of the appellate court to decide a motion for a new trial on an examination of the evidence; and it is a matter of right to ask a revision of the testimony on which the jury found the verdict. In tliis country it lias been the, uniform practice of the. Supreme Court, from its organization after the Revolution, to revise, the testimony on which the verdict was found, and for a long time to do so whether a motion for a new trial liad been made in the court below or not. This was modified; and the court now refuse to do so unless a motion was made in the court a quo and overruled. (Foster & Foster v. Smith, 1 Tex. R., 70.)
I have so far discussed the doctrine on the subject of revising a decision of the judge in refusing to grant a new trial, without any regard to the distinction supposed to exist between civil and criminal eases; ’and I think it may safely be concluded that at this day by far the greater number of the appellate courts oí the different States do exercise jurisdiction on the subject in some mode or other. In England it was not considered a matter of right to claim that the question whether the evidence supported the verdict should he referred ; hut if the judge at nisi prius thought, proper, and did reserve the question, the judges passed upon the evidence and awarded a venire de novo or not, according to their opinion of the evidence ; and this both in civil and criminal eases. In South Carolina any person dissatisfied with the evidence on which a verdict was found against him, whether in a civil or criminal ease, could have it referred to the Supreme Court; and if, in the opinion of the Supreme
I have so far examined the practice, of other courts on this subject. But independent, however, of all authority, it would seem that under a fair construction of our-owu Constitution and act of the Legislature, this jurisdiction could be fairly claimed. The jurisdiction of this court will be found defined, in the 4th article of the Constitution, under the head of JUDICIAL DEPARTMENT, section 9 : “The Supreme Court shall have appellate, jurisdiction only, which shall heco-extensive within the limits of the State; but in criminal, ‘cases and in appeals from interlocutory judgments, with such exceptions and under such regulations as the Legislature shall make.” The Legislature of. the. State, at its first session under the. Constitution, passed an act regulating-appeals to the Suiiroiue Court in criminal cases.
Se.ction 1 provides “that the defendant to any indictment or prosecution for any criminal offense ill the District Courts of the State shall have the right of appeal to the Supreme Court, except in eases of contempt of court.
“Sec. 2. That on the trial of any indictment or prosecution for any criminal offense included within the provisions of the first section of this act, the defendant, by himself or counsel, may file his bill of exceptions to any decision, opinion, order, or charge of the court before which lie is tried; and it shall be the duty of tlie judge of the said court to sign said bill of exceptions in the. same manner and under the same regulations as in civil cases, in order that such opinion, decision, order, or charge may be revised upon appeal to the Supreme Court herein provided.”
Section 3 provides “that it shall be the duty of the clerk to send up a full and perfect transcript of all the proceedings had in such case.”
In the absence of all precedent, I believe that under the authority
On the trial tlie court charged tlie jury that if the offense charged was proved to have been committe'd within twelve months before the commencement of tlie prosecution, it would sustain the indictment. This charge was excepted to by the counsel for tlie accused, and the exception overruled; and it isuiow assigned for error. It is probable that the, judge, in giving his charge to the jury, had reference to tlie limitation of prosecution for offenses contained in the 45th section of an act for punishing crimes and misdemeanors, passed by the Congress of Texas, 21st December, 1830, by which prosecution for all offenses except murder, arson, forgery, counterfeiting, and larceny must be within twelve months from the commission of the offense; and to the 04th section of the same act, by which it is enacted: “All offenses known to tlie common law of England, as now understood and practiced, which are not provided for in this act, shall be punished in the same manner as known to said common law.” If tlie charge of the court can be sustained, it must be by the section cited. The crime of incest is not embraced distinctly in tlie act of 1830, nor is it named but once, and then only to designate marriages within the prohibited degrees as incest; and it will bo found in the 35th section of the same act, the section, after enumerating the degrees of relationship within which it should not be lawful to marry, concludes: “ Whoever shall commit any offense mentioned in this section shall he deemed guilty of incest, aucl on conviction thereof shall helmed in a sum not exceeding one thousand dollars and shall he imprisoned not exceeding two years, at the discretion of the court.” If is believed that we have liad no act of the Congress of Texas or State Legislature making incest an indictable offense prior to the act of the Legislature of 1848, which did not take effect until the 1st of January, 1849, nnless'tlie offense can he brought within the 64th section of the act of 1830, above cited. If so, tlie charge would be proper, and proof of its being' committed within twelve months before the date 'of tlie indictment would be sufficient. If not, it Is erroneous; because it can claim no support from the act of 1848, because that act did not take effect until a 'period of time only three months before tlie commencement of the prosecution, which was in March, 1849. If the offense against decency and morality called incest was kuown to tlie common law and punishable, tlie indictment would bo good under the 54th section of the act of 183G. The inquiry is, then, was it alfolíense at common law?
.Blaekstone, in the 4th volume of his Commentaries, makes the following re-marles : “In the 3'car 1050. when tlie ruling ¡lowers found it for their- interest to put on the semblance of very extraordinary strictness and purity of morals, not only incest and willful adultery were made capital crimes, but also the repeated act of keeping a brotheTor committing fornication were (upon a second conviction) made felony without benefit of clergy. But at tlie restoration, when men, from an abhorrence of the. hypocrisy‘of the late times, fell into a contrary extreme of licentiousness, it was not thought proper to renew a law of snob unfashionable rigor. And tl'ieso offenses have been ever since left to the feeble coercion of the spiritual court, according to the rules of the canon law.” Hence we may conclude that at common law it was no offense, and that it was only punishable by the temporal courts during the time of the commonwealth under the Protector; that at tlie restorationlt was returned to the ecclesiastical jurisdiction. There is no doubt, however, that many offenses of private incontinence, known to the spiritual courts, might -be punished
Judgment' reversed.