30 S.W. 792 | Tex. Crim. App. | 1895
The indictment in this case was presented in King County, and was sent to Baylor County on a change of venue. The appellant was there tried and convicted of theft of one head of cattle, and his punishment assessed at two years and nine months in the penitentiary, and from the judgment and sentence of the lower court he prosecutes this appeal.
The appellant contends in this case that the court below which tried the cause had no jurisdiction, and that this court has no jurisdiction on appeal to try said case, because the record, as sent up from the District Court of Baylor County, shows that the grand jury which found the indictment in this case was composed only of eleven men. In reply to the motion of the appellant to dismiss said case for want of jurisdiction, the Attorney-General moves this court to expunge from the record so much thereof as shows the impanelment of the grand jury in King County, contending that same is no part of the record required to be sent from King to Baylor County, in the first instance, or required to be sent up to this court from Baylor County; and he also insists, if this court refuses to strike out said portion of the record, that the court look to the certificate from the clerk of the District Court of King County, furnished the Attorney-General, on request, showing that in fact twelve jurors were impaneled and found the indictment in this cause in King County, or, if deemed proper, that the court hear affidavits in support of its jurisdicton. This motion is resisted by the appellant. The transcript sent up from Baylor County does contain the impanelment of the grand jury in King County which found the indictment in this case, and shows that said grand jury consisted of but eleven persons. The Constitution (article 5, section 13) requires, that the grand jury shall consist of twelve qualified persons, and it has accordingly been so held by this court. So, if it be shown that in fact but eleven persons constituted the grand jury which found the bill of indictment in this case, this court has no jurisdiction, and the case must be dismissed.
We are referred by the Attorney-General to the Code of Criminal Procedure, article 585, which requires the clerk, on a change of venue, to make out a true transcript of all the orders made in the case, and certify thereto, under his official seal, then transmit the same, together with all the original papers in the case, to the clerk of the court to which the venue has been changed; and also refers us to article 860, which embraces the matter required to constitute the transcript on an appeal from the trial court to this court. From this it will be seen that neither on a change of venue, nor in making up the transcript on appeal, is the order of the court impaneling the grand jury required to be embraced in the record, nor would this court be authorized, on motion, if said order of the impanelment did not appear in the record, to issue a certiorari to the court below for such order of impanelment of the grand jury. Fuller v. The State, 19 Texas Crim. App., 388. But it is insisted by appellant, that however this may be, yet it does *398 affirmatively appear by the transcript sent to this court from the trial court that but eleven persons constituted the grand jury in this case, and that, inasmuch as the orders of this court for certiorari or other writ could only operate on the trial court, if this court were authorized to issue a certiorari or other writ it could only do so to the county of the trial court, and another certificate from that court would only verify the record in this case, and that by no possibility can this court seek information as to the jurisdiction of fact in the county from which the venue was changed. We understand it to be admitted, that if this question had been made in the court below, then it would have been competent for that court to have supported its jurisdiction by proper writs to the court from which the cause had been transferred, and that, this not having been done, this court can not go behind the record in the trial court.
By reference to article 580, Code of Criminal Procedure, it will be seen, that it is required in all cases that all matters which do not affect the substance of the change must be made before defendant applies for a change of venue in the case. Caldwell v. The State,
In connection with the motion of the Attorney-General, he has filed a certificate of the district clerk of King County, showing that in fact legal grand jury of twelve qualified persons was impaneled in said King County, and found the bill of indictment in this case, and that the certificate of transfer, showing that there were eleven, which was sent to Baylor County, did not in fact speak the truth, but was a mistake. This certificate was brought to the attention of appellant and his counsel, and he has not sought to controvert the fact. Therefore, we take it that such certificate speaks the truth, and that the indictment in question was found and presented in King County by a legal grand jury, and that the court below had jurisdiction to try the cause, and a motion to dismiss same in this court is overruled.
The only other question in the case necessary to be considered by us is whether or not the court below erred in failing to charge the jury on the matter of defense set up by defendant in the lower court. The defense set up there was that the animal in question was the property of appellant, or of his mother, which he had a right to take; and he *400 introduced some proof tending to show such claim, and besides, made explanations to the same effect at the time his right to the property was first questioned. The court gave no substantive charge on this defensive matter. The defendant excepted to a failure of the court to so charge, and besides, asked such charges, and excepted to the refusal of the court to give them. In Spencer v. The State, tried at last Dallas Term, 1895 (ante, p. 65), which was a case of theft of cotton, and where the defendant relied on ownership, as having raised the cotton himself, the court there charged the jury as follows: "By 'fraudulently taking' is meant, that the person taking knew at the time of the taking that the property was not his own;" and further required the jury to believe, beyond a reasonable doubt, that the three bales of cotton were the property of T.J. Sanders before they should convict the defendant. In that case there was no exception to the charge, nor was any charge asked embodying the substantive defense set up. The court there say, "The charges, as given, evidently and unquestionably involve the title to the property," and it is held, that the issue of title was properly submitted to the jury, in the absence of any exception taken on the part of the defendant. In this case, however, no such charge was given; and, as we have seen, an exception was taken to the refusal of the court to give a charge on the defense set up, and charges were asked by the appellant presenting his defense, and exception taken to the refusal of the court to give same. In our opinion, the action of the court in this regard was such error as should cause the reversal of this case, and the judgment is accordingly reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.