Steagald v. State

White, Presiding Judge. A motion is made by the Assistant Attorney General to dismiss the appeal in this case, because “ there is no such final judgment in the record as will support an appeal.” Appellant was found guilty of murder of the first degree, his punishment being assessed at death. As set forth in the record, — 485 — the judgment rendered by the court is in the following words, viz: “ The State of Texas ) v. v “A. A. Steagald. ) “ Tuesday, the thirtieth day of March, 1886. “ This day this cause was called, for trial, and the State appeared by her district attorney, and the defendant, A. A. Steagald, appeared in person, in open court, his counsel also being present; and the said defendant, A. A. Steagald, having been duly arraigned, and having pleaded not guilty to the indictment herein, both parties announced ready for trial, and thereupon a jury, to wit: M. E. Ivie and eleven others were duly selected, empaneled and sworn, who, having heard the indictment read, and the defendant’s plea of not guilty thereto; and having heard the evidence submitted, and having been duly charged by the court, retired in charge of the proper officer to consider of their verdict, and afterwards were brought into open court by the proper officer, the defendant and his counsel being present, and in due form of law returned into open court the following verdict, which was received by the court and is here now entered upon the minutes of the court, to wit: 1 We, the jury, find the defendant, A. A. Steagald, guilty of murder in the first degree, and assess his punishment at death. M. E. Ivie, foreman.’ It is therefore considered and adjudged by the court that the defendant, A. A. Steagald, is guilty of murder in the first degree, as found by the jury, and that he be punished as has been determined by the jury, that is, with death, and that he be remanded to jail to await the further order of this court herein.” The objection to the sufficiency of this judgment is that it does not declare the mode and manner in and by which defendant shall be put to death—that is, that he shall “ be hanged by the neck until he is dead.” Before the adoption of our present Revised Penal Code, and Code of Criminal Procedure, in 1879, it was essential to the validity of a final judgment inflicting the death penalty in a murder case that it should adjudge that the defendant should be condemned to be hanged by the neck until he is dead. (Shultz v. The State, 13 Texas, 401; Burrell v. The State, 16 Texas, 147; Calvin v. The State, 23 Texas, 578; Trimble v. The State, 2 Texas Ct. App., 303.) Article 791 of the Revised Code of Criminal Procedure defines. — 486 — a final judgment, and sets forth what it must contain. When we apply its provisions to the judgment in this case we find the judgment conforms strictly to said provisions, and is, moreover, in literal compliance with the approved form set out in Willson’s Criminal Forms. (No. 748, pp. 356, 357.) The declaration of the mode and manner of executing the death penalty, under our present statutes, properly belongs to and should be embraced in the sentence of the court. “A sentence is the order of the court made in presence of the defendant, and entered of record, pronouncing the judgment, and ordering the same to be carried into execution in the manner prescribed by law.” (Code Crim. Proc., Art. 792.) And Article 827 of the Code of Criminal Procedure declares that “the sentence of death shall be executed by hanging the convict by the neck until he is dead.” (See also Penal Code, Arts. 70 and 71.) We are of opinion that the judgment here presented is a valid and sufficient final judgment for murder of the first degree, inflicting the death penalty, and that the motion of the assistant attorney general to dismiss the appeal is not maintainable under our present statutes. Wherefore the motion is overruled. Motion to dismiss the appeal overruled. [Note.—The foregoing opinion on the State’s motion to dismiss the appeal was rendered on the fifth day of June, 1886, at the Austin term of the court. Subsequently the case was submitted on its merits, by both parties, was taken under advisement by the court, and transferred to the Tyler branch, and there decided the opinion on the merits following.] White, Presiding Judge. This appeal is from a conviction for murder of the first degree with death penalty, and the deceased is alleged to have been appellant’s own child, and the illegitimate offspring of incestuous intercourse with his own daughter. 1. It is objected to the record sent up on this appeal that it does not affirmatively show that any special venire had ever been ordered, drawn, and summoned as required by law, before the trial in the lower court. (Code Crim. Proc., Arts. 606, 607, 608, 610.) “It is the duty of the clerk of a court from which an appeal is taken to prepare, as soon as practicable, a transcript in every case in which an appeal has been taken, which transcript shall contain all the proceedings had in the case,” etc. — 487 — (Code Crim. Proc., Art. 860.) A special venire is one of the important and peculiar features pertaining to the selection of a jury for the trial of a capital case, and the record on appeal should show the proceedings with regard thereto. From other portions of the record we infer a special venire was ordered in the case. But such matters should not be left to inference, and where the statute makes it the duty of the clerk to send up all the proceedings, he should do so or be able to show a reason for not doing so—as that the incorporation of the same into the record was waived by the appellant. Where mere irregularities occur in a transcript this court may overlook or presume that that was done which should have been done (Smith v. The State, 21 Texas Ct. App., 277; Handline v. The State, 6 Texas Ct. App., 347); but such presumption can not and will not be indulged where the proceeding goes to the very gist of one of a defendant’s most important rights, given him by law when about to be tried upon a matter involving his life. Ho objection, however, appears to have been taken in limine to any matter pertaining to the special venire, and doubtless the provisions of the law were fully complied with. The transcript not showing this matter, if we had concluded to affirm the judgment otherwise, we would not do so until we had first ascertained, by means of a certiorari to perfect the record, that the proceedings not shown had been taken in conformity with the statute. 2. It is complained that the record does not show that defendant was ever arraigned under the indictment and required to plead thereto, except by the formal recitals in the judgment; which, it is claimed, is insufficient. This question was sufficiently discussed, and the authorities cited in Wilson’s case. (17 Texas Ct. App., 526.) Whilst the practice contemplated by the statute (Code Crim. Proc., Arts. 508, 509) would seem to indicate the procedure as a separate one preliminary to the trial proper (Smith v. The State, 1 Texas Ct. App., 408), yet the more common practice is, we believe, to arraign the defendant when he is called to plead to the indictment at the trial; and that is certainly sufficient under the comprehensive rule, now well settled, that “ if the record shows that the accused pleaded ‘ not guilty,’ but is silent respecting the arraignment, this court, presuming that an arraignment was waived, will not reverse the .judgment of conviction for want of an arraignment; but, if the record shows neither an arraignment nor a plea, the judgment — 488 — would be set aside.” (Plasters v. The State, 1 Texas Ct. App., 673; Wilson’s case, supra.) 3. Appellant’s first bill of exceptions was as to the ruling of the court in holding the juror Sanders competent on the examination on his voir dire. Sanders did not show himself incompetent or disqualified. (Thompson v. The State, 19 Texas Ct. App., 594; Kennedy v. The State, Id., 619; Johnson v. The State, 21 Texas Ct. App., 368.) Moreover, it is not shown by the bill that defendant had exhausted his peremptory challenges, and unless that is shown he has no right to complain. (Loggins v. The State, 12 Texas Ct. App., 65; Bean v. The State, 17 Texas Ct. App., 60; Heskew v. The State, 17 Texas Ct. App., 161.) 4. Appellant’s second bill of exceptions was as to the admissibility of Doctor Biddick’s testimony of a conversation which he overheard between the defendant and his wife, whilst the witness was attending the mother of the child as physician, during her confinement. “A medical attendant is ordinarily without privilege even as to communications confidentially made to him by his patient. In the United States, however, statutes in several jurisdictions have been passed conferring this immunity, which statutes virtually prohibited physicians from disclosing information they derive professionally from their relations to their patient.” (Whart. Crim. Ev., 8 ed., sec. 516.) We have no such statute in this State. That the testimony was relevant and pertinent there can be no doubt, because it went to establish a design and intent on the part of the accused, and to show his anxiety and determination to dispose of the child by sending it and its mother away, and thus keep secret the disgrace which had befallen his family. 5. A most serious question is raised by appellant’s third bill of exceptions. It appears that on the day on which the examining trial was had, John, Fannie and Emma Steagald, minors and children of defendant, were summoned to testify, and did testify at said trial, to certain facts of a damaging character against defendant. As a predicate for the introduction upon the trial below in this case of the written testimony of said witnesses, taken as aforesaid at the examining trial, one E. B. Mundy made an affidavit relating the circumstances of their testifying at the examining trial; and he deposed furthermore in said affidavit that the said witnesses, John, Emma and Fannie Steagald, since the taking of said testimony, have removed from the State of Texas and from the jurisdiction of this court, and — 489 — taken up their permanent residence in the State of Tennessee; and the said E. B. Mundy, in another and second affidavit, states that said parties are material witnesses for the State in this cause, and that they reside out of the jurisdiction of the court and in the State of Tennessee. Upon this predicate the prosecution proposed to introduce in evidence the written testimony of the witnesses taken at the examining trial. Defendant’s counsel objected, and asked the court to have the affiant Mundy, who was there present in the court room, sworn and tested under direction of the court as to his knowledge and means of knowledge of the facts stated by him, to wit, that the said witnesses had removed from the State of Texas to the State of Tennessee, and were beyond the jurisdiction of the court,—defendant at the time stating that said witnesses were not beyond the court’s jurisdiction, and that affiant Mundy did not know the facts as stated by him in his affidavit. The court refused to have affiant Mundy called, sworn and tested as to his means of knowledge, overruled defendant’s objections to the evidence, and permitted the introduction of the same before the jury. There is no question but that the affidavits in their allegations were in conformity with the requirements of the statute (Code Crim. Proc., Arts. 772, 773), and established a sufficient predicate for the introduction of the testimony, provided the affiant Mundy was a “credible person ” and knew the facts deposed to. Article 773 declares that when such testimony is proposed to be used by the State, the oath prescribed may be made by the district or county attorney, “or any other credible person.” K"o provision is made by law for controverting this oath, but we see no reason why it can not be controverted, and, especially if in writing, by counter affidavit made at the time when it was sought to be used as a predicate upon which to introduce the testimony of the absent witnesses. This seems to be the practice followed in the lower courts. (Ballinger v. The State, 11 Texas Ct. App., 323; Kerry v. The State, 17 Texas Ct. App., 179.) But “the oath” required by the statute is not required to be in the form of an affidavit, or even in writing. (Code Crim. Proc., Art. 772; Post v. The State, 10 Texas Ct. App., 579; Pinkney v. The State, 12 Texas Ct. App., 352; Parker v. The State, 18 Texas Ct. App., 72.) It is an oath made by a credible person, presumably a statement in person under the sanctity of an oath, just as any other fact is testified to by witnesses at a trial. And we can see no reason why it can not and should not be liable to be controverted and im — 490 — peached in the same manner as any other testimony, both as to the credibility of the witness, his.means of knowledge, and as to the truth of his statement. A credible person may swear to a fact and yet it may be shown that his means of knowledge was so limited that he was mistaken as to the fact. An affidavit to a fact does not per se mean that the affiant had personal knowledge of the fact. (U. S. v. Moore, 2 Lowell, 232; S. C. 4 Criminal Defences, 393.) The admission of this character of testimony rests solely upon necessity, and the rule as to its admission is an innovation upon the constitutional guaranty that in all criminal cases the accused shall have the right to be confronted with the witnesses against him. (Johnson v. The State, 1 Texas Ct. App., 333.) Such being the case, it is important that the facts which authorize its use be established by proof. (Menges v. The State, 21 Texas Ct. App., 413.) We are of opinion the defendant was entitled to have the affiant Mundy called, sworn and tested as to the facts stated by him in his affidavits, and that it was error to refuse his request to that effect. It is true he filed no counter affidavit controverting Mundv’s affidavit, but this was not necessary, since Mundy’s “affidavit” was not in conformity to, or rather not required by, the law—the statute requiring an oath and not an affidavit. 6. Appellant’s fifth and sixth bills of exception relate to errors in the charge of the court. The sixth is a special exception to the third paragraph, which is in these words, viz: “ All murder committed by poison, starving, torture, or with express malice, or committed in the perpetration or in the attempt at the.perpetration of arson, rape, robbery or burglary, is murder in the first degree.” As charged in the indictment, the crime was a murder committed by personal injuries and with malice aforethought. There was no averment of any kind about either poison, starving or torture, nor concerning the perpetration or attempt at the perpetration of arson, rape, robbery or burglary, and there is not a scintilla of proof relating to any of these matters. It is true that in distinguishing the two degrees of murder the code declares that either of those means, when used in its commission, constitutes murder in the first degree per se (Penal Code, Art. 606), but this Article is no part of the definition of murder (Neyland v. The State, 13 Texas Ct. App., 536) and is never essential to be given in the language of the statute. — 491 — On the contrary, it is worse than nonsense and folly to give any more of it than is exactly and precisely applicable to the case as laid in the indictment and made by the evidence. To illustrate: A shoots B in a public street, with a shot gun, of his express malice, nothing more, nothing less. Now, in the name of reason and common sense, what has arson, poison, robbery, starving, torture or rape to do with such a case? Not one particle more than a game of pin pool, or the violation of the local option law, and perhaps not half as much. And yet all these matters are submitted to the jury only to confuse and confound instead of enlightening them distinctly in “the law applicable to the case.” (Code Crim. Proc., Art. 677. See on this point the pertinent comments of Judge Hurt in Hackett v. The State, 13 Texas Court of Appeals, 400.) A charge “applicable to the case” means applicable to the case as averred in the indictment and made by the evidence. (Kouns v. The State, 3 Texas Ct. App., 13; Lister v. The State, Id. 17; Clark’s Crim. Laws of Texas, 515, et seq., and note 204.) The instruction quoted above was excepted to and a bill of exceptions reserved. But for the fact that the patent error was cured in subsequent portions of the charge, where it was sought to apply the law to the facts, the error would have been fatal and have necessitated a reversal. That a charge, however, is to be considered as a whole, and not by isolated paragraphs, in determining its validity and sufficiency, is the well established rule of practice in this State, and if, as a whole, it is sufficient, the demands of the law are met. (Hart v. The State, 21 Texas Ct. App., 163.) Where an instruction is erroneous and not after-wards cured in the charge, it will, if excepted to, be ground for reversible error without inquiry as to the probability of injury done by it. (Niland v. The State, 19 Texas Ct. App., 166; Clanton v. The State, 20 Texas Ct. App., 615; Paulin v. The State, 21 Texas Ct. App., 436.) There is a striking omission in the general charge. The jury are nowhere told that if they do not believe the defendant guilty they should find him not guilty or acquit him. A failure to so instruct might have a tendency to impress the jury with the belief that in the opinion of the court the defendant was under no circumstances entitled to be acquitted, even if they believed him not guilty. Several requested instructions were asked by defendant and refused. We do not believe any error was committed in this respect, the instructions not being correct in law. — 492 — After their retirement, and after they had been considering the case for some time, the jury returned into court and propounded several questions upon which they desired additional instructions from the court. These instructions the court gave in writing, and we believe that in the main they are substantially correct, and not obnoxious to the objections urged against them that they are not responsive to the questions asked or applicable to the facts in evidence. We come now to the consideration of the motion for a new trial. Without going over or discussing any of the other grounds, we will, at the risk of prolixity, and because it is a most terrible arraignment of the fairness, justice and impartiality of the trial and proceedings in the lower court, copy in full the thirteenth ground of said motion, as we find it in the record, as follows, viz.: ■ “ 13. Because defendant did not get a fair and impartial trial, and such as is guaranteed him by the Constitution and the laws of the State of Texas, for the following reasons, to wit: From the very day that defendant was first arrested, charged with the murder of said infant, the prejudice in Clay county has been so very great, continually up to this time, against defendant, that he has been wholly unable to obtain a fair and impartial trial. That, a short time after his arrest, he was taken from the jail of Clay county by a mob of citizens of Clay county and hung in the jail yard; and that the sheriff of Clay county by force cut down said defendant just before- life was extinct. That at another time, during the examining trial of defendant before Ben F. Turner, justice of the peace, in the court house of Clay county, a large number of citizens qf Clay county obtained and prepared a rope with which to hang defendant out of the second story window of said court house, and which was prevented by means unknown to defendant. That the people of Clay county have continually threatened to hang this defendant, and still say that they will hang him, regardless of all law, if not hung by the law in Clay county, Texas. That said people of Clay county have organized, and did organize before the trial of this case, and agreed between themselves that if a change of venue was granted defendant in this case they would hang him before defendant left the court house; or that if this case was continued that they would hang defendant at once; or that if defendant was cleared by a jury they would then hang him before he could leave the court house. “ That at all times when this defendant was brought from the — 493 — jail of Olay county to the court house, said mob was there, ready, willing and determined to execute their said threats. That the prejudice was so great against defendant that not a man could be found who was willing to risk his life and liberty by making an affidavit for a change of venue in this case. That the district attorney himself stated to defendant’s counsel, and (as defendant is informed and believes) to the court, that the prejudice against defendant in Clay county was so great that he himself would make a motion to change the venue if there was any law authorizing him so to do. That the honorable district judge toho tried this case had full knowledge of the above facts, and that the defendant’s attorneys, who were appointed by the court to defend him, applied in person to the court and stated the above facts to him, and asked the court to change the venue of his own motion, as defendant could in no event obtain a fair and impartial trial in Olay county, ivhich the court refused to do, giving no reason therefor. That, although defendant was not ready for trial, and his attorneys had only been appointed by the court to defend him a day or two before the trial, the defendant and his attorneys were forced and compelled to announce ready for trial, and go into the trial of this case, for the reason that they well knew, and had been told by a large number of persons then present in the court house, that unless defendant did go into trial that said persons would then and there take defendant out of the charge of the officers by force and hang him until he was dead, and defendant well knew that said persons were determined to do so.- “That in obtaining a jury to try said case, about three hundred persons disqualified themselves as jurors in defendant’s case on the ground that they had formed an opinion as to defendant’s guilt, and that said opinion formed was against defendant. That defendant was compelled to take several jurors who were on the jury that tried this case, who were wholly disqualified by reason of having formed an opinion, for the reason that he was bound to obtain a jury and try the case or be hung by a mob. That in truth and in fact twelve men could not be found in Clay county who had not formed such an opinion as to the guilt or innocence of defendant as would influence them in finding a verdict, and that said prejudice is still so great against defendant in Clay county that the people say openly that if this case is reversed by the Court of Appeals that they will hang the defendant. That the prejudice was and is so great against de — 494 — fendant that the court found it almost impossible to get an attorney to defend defendant in this case, and that all the attorneys at the bar refused to defend defendant and the court was compelled to require and force attorneys to defend this defendant. Defendant further says that the reason he did not file his motion for a new trial within two days after the verdict of the jury was returned, and not before this time, is because the attorneys who were appointed by the court to defend the defendant in the trial of the case positively failed and refused to make a motion for a new trial or appeal this case for defendant, although urged and requested by defendant so to do—the said attorneys giving as their reason that they had already done a large amount of work in this case, and that, if they appealed the case, they would make a large number of enemies in Clay county; and defendant says that he has been at all times and still is wholly unable to employ counsel or pay them a fee in this case. That he has no means whatever, and he has tried to get assistance from his friends but has wholly failed; and that since the verdict of the jury was rendered in this case this defendant has been without counsel to represent him or advise him until this, the fourteenth day of April, 1886, when the court appointed counsel to perfect this defendant’s appeal. Wherefore defendant prays that this motion be entertained by the court, and the verdict of the jury and judgment of the court heretofore rendered in this cause be set aside and a new trial granted defendant in this case.” This motion for a new trial was subscribed and sworn to by the defendant. If but one tenth part of it be true, then there can be no question but that it should have been granted on account of error of the court in trying the case under such circumstances. One of the statutory grounds for a new trial is where the court “has committed a material error calculated to injure the rights of the defendant.” (Code Crim. Proc., Art. 777, sub. div. 2.) There is a direct charge, it will be noted, in this motion that the facts stated were known to be true by the trial judge. If the statements were not true, it would appear to have been an easy matter to deny and controvert them. It is provided by the statute that “the State may take issue with the defendant upon the truth of the causes set forth in the motion for a new trial, and in such case the judge shall hear evidence, by affidavit or otherwise, and determine the issue.” (Code Crim. Proc., Art. 781.) The language is “the State may take issue.” We will not — 495 — say that it is the duty of the State to take issue in every case where a motion for new trial is made, as, for instance, where the ordinary formal grounds only are assigned, as that "the verdict is contrary to the law and the evidence, and the court misdirected the jury as to the law,” and the like; but, where the integrity and impartiality and fairness of the trial is attacked, and the same is capable of proof, it seems to us but reasonable that the State should take issue upon the causes set forth, and that in such cases, unless the facts stated are in themselves patent and against the motion, the judge should hear evidence and determine the issue upon the evidence. (Reynolds v. The State, 7 Texas Ct. App., 516; Childs v. The State, 10 Texas Ct. App., 183; Stanley v. the State, 16 Texas Ct. App., pp. 399, 400; Harris v. The State, 17 Texas Ct. App., 559; Moore v. The State, 18 Texas Ct. App., 212.) If the facts surrounding the prisoner were such as are detailed as having taken place before the trial, and those facts were, as charged, known to the judge, and he had good reason to believe or was satisfied from said facts “that a trial alike fair and impartial to the accused and to the State” could not be had in the county, he should upon his own motion have ordered a change of venue to any county in his own or in an adjoining district, stating in his order the grounds for such change of venue. Code Crim. Proc., Art. 576; Cox v. The State, 8 Texas Ct. App., 254.) The power to change the venue of cases is by the Constitution vested in the courts, to be exercised as provided by law. (Const., Art. 3, sec. 45; Code Crim. Proc., Art. 18; Cox v. The State, 8 Texas Ct. App., 254; Webb v. The State, 9 Texas Ct. App., 490; Bohannon v. The State, 14 Texas Ct. App., 271.) At all events if information of such facts and circumstances as are stated was brought to the knowledge of the judge by the attorneys whom he had appointed to defend, and who were officers of his court, and who stated good and sufficient reasons why defendant was unable to make the statutory motion himself, it was his duty at least to inquire into the matter and hear testimony in order that he might know what his duty was in the premises and act upon it accordingly. And if, as stated, the district attorney knew the facts and that " on account of the lawless condition of affairs in the county a fair and impartial trial as between the accused and the State could not be safely and speedily had,” “or that the life of the prisoner would be jeopardized by a trial in the county in which — 496 — the case was pending,” then the statute gave him the right to move, and it was his duty to move for and try to obtain a change of venue. (Code Crim. Proc., Art. 577.) Among English speaking peoples “the right of trial by jury’’ has always been considered, and Sir William Blackstone justly denominates it, “ the palladium of civil rights.” Our Constitution requires that it “shall remain inviolate.” (Bill of Rights, sec. 15.) As an essential factor in the protection of the life and liberty of the citizen, it is considered so important that our laws declare that “the defendant to a criminal prosecution for any offense may waive any right secured to him by law except the right of trial by jury in a felony case.” (Code Crim. Proc., Art. 23.) But he is not only entitled to a trial by jury, but our Constitution characterizes the kind of jury which is to try him, and says, “the accused shall have a speedy public trial by an impartial jury.” (Bill of Rights, sec. 10.) Rot only so, but it is also the will and policy of the law that the “trial shall be alike fair and impartial to the accused and the State.” ■ An impartial jury and a fair trial is what the State demands, and in her demands she is no respecter of persons. She has one law for all— the high and the low, the rich and the poor, the friendless, the most debased and hardened of criminals. The greater and more horrible the crime charged the greater and more imperative the necessity that these safeguards—these landmarks of the law— should be constantly looked to and kept steadily in view, lest, perchance, they should be forgotten, denied or ignored in those natural promptings of a manly, it may be, and certainly a human instinct, which, standing appalled and outraged at the very contemplation of such heinous iniquity, condemned the suspected criminal in advance, and mainly, perhaps, through the magnitude and turpitude of his imputed crime. In such cases, when the popular mind is inflamed and popular indignation is ready and clamorous to become the executioner of its own vengeance, it is the part of an honest, fearless, manly judiciary to uphold the standard of the law, and to vindicate its majesty and integrity regardless of all consequences. This appellant may be guilty of one of the most horrible crimes ever known in the annals of crime in this or any other country. He may justly deserve to “die the death” that has been awarded him in this proceeding. But if from the circumstances surrounding the trial which led to his conviction there is ground to believe that the same was probably not fair and impartial, and — 497 — if error prejudicial to the rights of the accused is manifest in the rulings of the court, it is the duty of this court, on appeal, to see that the conviction shall not stand, and that, if the defendant is to be hung, he be hung according to law. Opinion delivered December 1, 1886. For the errors we have pointed out and discussed the judgment is reversed and the cause remanded. Reversed and remanded.