H. H. Childers v. The State

WARD, R. H., Special Judge.

This is a conviction of murder in the second degree, with punishment assessed at confinement in the penitentiary for the term of fifteen years.

A few days before tire homicide two men by the names of Peter and Walling pointed out to defendant the deceased, on the streets of San Antonio, as the man who had told them of many exploits of a kind to illustrate his dangerous and desperate character, and of such variety and extent as would tend to cause any person to whom the same were narrated to believe that an assault by deceased would be one calculated to create a reasonable apprehension in the mind of a person attacked by deceased of death or serious bodily harm. Upon the trial the defendant proposed to prove these facts, but the district attorney objected on the grounds of immateriality and irrelevancy. The court sustained the objection and refused to admit the testimony. The defendant excepted and reserved a bill of exceptions to this ruling of the court. The facts of this case render this proposed testimony of the greatest importance, and the reporter will insert them in full.

If defendant had reasonable grounds for believing and did believe Draper (deceased) a dangerous and violent man, he had the right to act on that belief whether Draper was such a man or not.

But can the accused establish the grounds for such belief in the manner proposed? He could prove such a character for the deceased by general reputation, the presumption being that the accused knew of the general reputation.

But suppose that in fact the defendant did not know of the general reputation of his adversary, certainly his conduct should not be judged in the light of the general reputation of his adversary, though ever so bad, for not knowing such general reputation his conduct or acts could not in any manner have been influenced or controlled by such reputation. Grissom v. The State, 8 Texas Ct. App., 386.

In Brumley v. The State, 21 Texas Court of Appeals, 240, it was said by this court: “It is a rule, not only statutory but almost of universal acceptation, that a party may act upon reasonable appearances of danger, and that whether danger is apparent or not is to be determined from the defendant’s standpoints” If the accused had reasonable grounds for believing, and did believe, that the deceased was a dangerous man, the source of his information or belief is altogether immaterial. The law does not permit testimony to be given of the dangerous character of a deceased upon the principle of justification, for.it is just as much a violation of law to unlawfully kill a man of dangerous or violent character as to kill a man whose character is that of peace. But such testimony is admissible for the purpose of judging the conduct of the accused from his standpoint and in the light of all the surrounding facts and circumstances attending the homicide and as the same appeared to him. In this way alone can you properly determine the motives that controlled and governed his act. If the accused was in fact influenced and controlled by his belief that the deceased was á dangerous or desperate man, what matters it to him whether that belief be occasioned by the general reputation of the deceased, which the accused is only presumed to know, and which in fact he may not know, or whether that belief was generated by the statements of the deceased himself, the question at last being, did that belief exist and was the conduct of the accused influenced by it? It was the province of the jury to pass upon these questions, and they certainly could not do so unless they were in possession of all the facts and circumstances known to the accused, and which he claimed influenced or controlled his conduct.

Hr. Bishop clearly states the rule of law applicable to this question, as follows: “Except in capital executions under judicial sentence no evil in a person, however extreme, will justify or palliate the taking of his life. Therefore proof of the character, conduct, or utterances of the deceased is not ordinarily admissible in trials for homicide. But as a help to the understanding of motives and purposes it may be to a limited extent in special circumstances now to be explained. Thus the defendant to excuse or mitigate his acts claims that they were in self-defense or passion. The particulars of the transaction being thus material and the law judging him by the facts and necessities as they appeared to him, whatever they truly were, he may give in evidence anything known to him of the character, prior conduct, threats, or other utterances of the person with whom he was contending, which, not as showing that the man was bad, but that in the special instance and circumstances he was dangerous, might reasonably have place among the considerations guiding his actions.” 2 Bish. Crim. Proc., secs. 609, 610. The testimony of the witnesses Peter and Walling was admissible, and the court erred in excluding it.

It appears from defendant’s bill of exceptions that the State introduced and read in evidence over objection and exception of appellant the testimony of one Ellis given before Judge King on hearing of a writ of habeas corpus, and reduced to writing and signed by Ellis. The appellant objected to this testimony on the ground among others that the same was hearsay, and also objected that a proper predicate had not been laid. Whether a proper predicate had been laid is not a question deemed necessary to be determined here under the view we take of the case made by the bill of exceptions. The testimony admitted was of a very important character and very damaging to appellant, and the question is whether it was, in the form in which it was offered, such as could be legally admitted at all, or in other words, is a habeas corpus proceeding an “examining trial” and the court in which it occurs an “examining court” within the meaning of article 774, Code of Criminal Procedure? It is unnecessary to discuss what the rule is upon this subject at common law in the state of the record. Johnson v. The State, 27 Texas, 758. See also article 25, Code of Criminal Procedure. Therefore the material inquiry is, have we a statute that authorizes the admission of this evidence? It is contended that article 774, Code of Criminal Procedure, authorizes the admission of such testimony, on proof of the proper predicate being laid, as provided for in articles 772, 773, Code of Criminal Procedure.

Article 774 reads as follows: “The deposition of a witness taken before an examining court or a jury of inquest and reduced to writing and certified according to law, in cases where the defendant was present when such testimony was taken and had the privilege afforded him of cross-examining the witness, may be read in evidence, as is provided in the two preceding articles for the reading in evidence of depositions.” In order for such testimony to be admissible under this article it is necessary that the same should have been taken before an examining court or a jury of inquest. The next step in the solution of this question is to determine what constitutes an examining court. This question is solved by the statute, for it expressly defines what constitutes an examining court. Article 63, Code of Criminal Procedure, reads as follows: “When a magistrate sits for the purpose of inquiring into a criminal accusation against any person, this is called an examining court.” Article 26 of the Penal Code reads as follows: “A criminal action as used in this code means the whole and any part of the procedure which the law provides for bringing offenders to justice; and the terms ‘prosecution,’ ‘ criminal .prosecution, ’ ‘accusation,’ and ‘criminal accusation’ are used in the same sense.” Our statutes do not define what a magistrate is, but very clearly state who are magistrates and what their duties are. A magistrate is “apublic civil officer, invested with some part of the legislative, executive, or judicial power given by the Constitution, etc. The President of the United States is the chief magistrate of the nation; the governors are the chief magistrates of their respective States. In a narrower sense the term only includes inferior judicial officers, such as justices of the peace, etc.” 13 Am. and Eng. Encyc. of Law, pp. 1198, 1199.

Article 42 of the Code of Criminal Procedure is as follows: “Either of the following officers is a magistrate within the meaning of this code: The judges of the Supreme Court, the judges of the Court of Appeals, the judges of the District Court, the county judge of the county, either of the county commissioners, the justices of the peace, the mayor or recorder of an incorporated city or town.”

Article 43 of the Code of Criminal Procedure is as follows: “It is the duty of every magistrate to preserve the peace within his jurisdiction by the use of all lawful means; to issue all process intended to aid in preventing-and suppressing crime; to cause the arrest of offenders by the use of lawful means in order that they may be brought to punishment.”

In order for a court to be an examining court within the meaning of the statute under discussion, we think that a magistrate must preside as a magistrate for the purpose of inquiring into a criminal Accusation preferred against a person on trial, and this duty must be enjoined upon him as a magistrate by the law. That those judges who have the power to issue the writ of habeas corpus do not have this power because they are magistrates, but they possess this power because it is conferred upon them by the Constitution. Judges of the Supreme Court have the power to act as magistrates, to cause offenders to be arrested and bound OArer or discharged. They do not do this as judges of the Supreme Court, but as magistrates authorized to perform these acts. Yet notwithstanding they are magistrates in the performance of these acts, they can not issue the writ of habeas corpus. The judge of the District Court can entertain a complaint against a citizen, can have a trial upon it, can admit to bail, discharge, or commit to jail the offender, but in performing these duties "he acts not as judge of the District Court, but as a magistrate. A justice of the peace is ex officio a notary public, but when he is performing a judicial duty he acts as a justice of the peace and not as a notary public. Any magistrate, whether he be a judge of the Supreme Court or the mayor or recorder of an incorporated town or city, has the power to hold an examining court, but no magistrate as such has been given the power to issue the writ of habeas corpus. “A writ of habeas corpus is an order issued by a court or judge of competent jurisdiction, directed to any one having a person in his custody or under his restraint, commanding him to produce such person at a time and place named in the writ, and show why he is held in custody or under restraint.” Code Crim. Proc., art. 131. “The Court of Appeals or either of the judges, the District Courts or any judge thereof, the County Courts or any judge thereof, have power to issue the writ of habeas corpus, and it is their duty upon proper application to grant the writ under the rules herein prescribed.” Art. 135, Code Crim. Proc. In issuing the writ of habeas corpus the act is that of the court or of the judge of the court and not the act of a magistrate, and the trial upon the same is not an examining court held by a magistrate, but is a trial before a court or the judge of the court. The objects and purposes of an examining court and a habeas corpus proceeding are essentially different. In the former the object is to determine whether a person who is accused of an offense is guilty and whether he should be discharged or bailed. In the latter the object is to determine whether the citizen is unlawfully restrained of his liberty. In the former the proceedings are in an examining court before a magistrate; in the latter before a court or the judge of a court to whom in the particular matter jurisdiction is specifically given. These views are in accord with a previous decision of this court. In the case of Hart v. The State, 15 Texas Court of Appeals, 226, occurs this language: “After providing generally for the jurisdiction of justices, the Constitution declares that they may have ‘such other jurisdiction, criminal and civil, as may be provided by law under such regulations as may be prescribed by law.’ Const., art. 5, sec. 19. In prescribing their powers and jurisdictions article 1543, Revised Statutes, provides that ‘they shall also have and exercise jurisdiction over all other matters not hereinbefore enumerated that are or may be cognizable before a justice of the peace under any law of this State.’ With regard to the final trial of causes coming within his jurisdiction, whether civil or criminal, the statute evidently contemplates that the action and jurisdiction of the justice court shall be limited by and to his precinct unless otherwise expressly authorized by the law in certain exceptional cases. But he is furthermore a ‘magistrate,’ made so by the terms of the statute equally with the judges of the Supreme Court, Court of Appeals, district and county judges (Code Crim. Proc., art. 42), and when a magistrate sits for the purpose of inquiring into a criminal accusation against any person this is called an ‘examining court.’ Code Crim. Proc., art. 63. At such time he is a ‘magistrate’ and not a ‘justice of the peace,’ and his court an ‘examining’ and not a ‘Justice Court.’ A warrant of arrest may be issued by a magistrate (Code Crim. Proc., art. 232), and when issued by a judge of the Supreme Court, Court of Appeals, District or County Court, shall extend to every part of the State. Code Crim. Proc., art. 237. But when issued by any other magistrate it can not be executed in any other county except in certain instances mentioned. Code Crim. Proc., art. 238. It may, however, be issued to and executed anywhere in his county outside of as well as in his own precinct.

“When sitting as an ‘examining court’ the law nowhere limits the magistrate if he be a justice to his particular precinct; and not being-in this regard, there is no reason why it was not intended he should hold the court in any portion of the county most convenient for the purpose of the examination as to the commitment or discharge of the accused (Code Crim. Proc., chap. Ill), whether the place of the sitting be in the precinct of another justice competent and qualified to act or not.” From this decision it is manifest that a justice of the peace has a dual character. Those matters conferred upon him and to be exercised by him as a justice of the peace constituting one, and those conferred upon him to be exercised by him as a magistrate constituting the other. This is equally so of the judges of the Supreme, District, and County Courts. The judges of the Supreme Court are magistrates, but can not issue the writ of habeas corpus. The judges of the District Courts are magistrates and can issue the writ of habeas corpus. Is this by virtue of any power given to magistrates? Most certainly not. It is by virtue of the power given them as courts or judges thereof. Then in the exercise of this power it follows that the writ is issued by a court or the judge thereof and not by a magistrate, and the proceeding is not in an examining court and is not carried on before a magistrate. Article 774 contemplates that the testimony should be reduced to writing and certified according to law, etc. Article 267, Code of Criminal Procedure, which relates to an examining trial before a magistrate, requires the testimony to be reduced to writing, signed by the witness, and certified to by the magistrate taking the same. We can find no such provision relating to a habeas corpus trial before a court or judge, and this fact strengthens our view that article 774 was not intended to embrace the testimony taken before a judge on habeas corpus trial. Evans v. The State, 12 Texas Ct. App., 383.

We are of the opinion that the testimony of the witness Ellis taken before the judge on habeas corpus trial was not admissible in evidence, and the court erred in admitting the same.

We have carefully considered all the evidence contained in the record, but in view of the disposition made of this case we do not deem it necessary to say whether in our opinion the testimony is sufficient or not to support a conviction for murder in the second degree.

For the errors discussed in this opinion the judgment is reversed and the cause remanded..

Reversed and remanded.

WHITE, Presiding Judge.

I fully concur in the views of the majority of the court reversing this case on account of the court below permitting the introduction of the testimony of the two witnesses Peter and Walling, and I fully agree that the case should be reversed for the errors discussed in the opinion except with regard to the ruling of the court on the admission of the written testimony of the witness Ellis taken in writing on the habeas corpus trial. I do not concur in the views expressed as to this testimony and its admissibility, and regret that the limited time of the present term precludes me from giving as full and thorough an investigation and discussion of the subject as its merits require. I believe that this testimony was admissible under article 774, Code of Criminal Procedure, which provides that a deposition of a witness taken before an examining court or a jury of inquest and reduced to writing and certified according to law, in cases where the defendant was present when such testimony was taken and had the privilege afforded him of cross-examining the witness, may be read in evidence as provided in the two preceding articles for the reading in evidence of depositions. The word “deposition” as used in this article is manifestly a mistake for the word “testimony” or “evidence.” Kerry v. The State, 17 Texas Ct. App., 178.

Article 772, one of the articles referred to, prescribes the circumstances under which such testimony may be read, and where either one of these circumstances is established as a predicate the testimony is permitted to be used.

In the case in hand the objection to the admissibility .of Ellis’ testimony was not to its competency and admissibility as such, but was based upon the fact that a sufficient and proper predicate had not been laid under the provisions of article 772. When one of the predicates in article 772 has been established the evidence taken before an “examining court” is made admissible by the provisions of article 774. It is objected that the evidence was not taken before such court as is contemplated in said article, to-wit, an “examining court” and the question is whether or not a habeas corpus proceeding is “an examining trial” and whether or not the court in which it occurs is such an “examining court” coming within the meaning of said article. It will be observed that the article in question, so far as the question here raised is concerned, only requires the evidence, to have been taken before “an examining court” and reduced to writing.

2sTow what is an “examining court1?” Our statute defines it to be a proceeding before a magistrate for the purpose of inquiring into a criminal accusation against any person. The Code of Criminal Procedure, article 63, and article 42, Code of Criminal Procedure, declares that magistrates within the meaning of the code are justices of the Supreme Court and Court of Appeals, district and county judges, county commissioners, and justices of the peace.

A criminal accusation is defined by articles 25 and 26 of the Penal Code to be the whole or any part of the procedure which the law provides for bringing offenders to justice.

It is a familiar rule that in construing a statute, in order to arrive at its true meaning or the effect and scope of any term used therein, all statutes bearing upon the same subject and having relation thereto must be taken and considered together and construed in connection with the particular one under consideration. Applying this rule, we find the article in question simply employs the words ‘ ‘ examining court ’ ’ in their broad and comprehensive sense. There is nothing in the article to indicate that the term as there used was intended to be restricted to a court over which a justice of the peace presides; and when, as in this case, we have a statute defining “examining court” and the officers who are qualified to preside over the same, it would be doing violence to both the language and the spirit of the article under consideration, when it simply uses the words “examining court,” to say that these words are to be limited and restricted to an “examining court”presided over by a particular one of the several officers qualified in law to preside over the same. That a habeas corpus trial is a proceeding in an “examining court” can not be successfully controverted and ought not to admit of doubt. The statute says that an “examining court” is where a magistrate sits to inquire into an accusation against any person. The sole inquiry in a habeas corpus proceeding where a person is restrained and held on a charge of crime is, does the evidence show that the accused has committed any offense which requires him to be restrained of his liberty?

The very gist of the inquiry is the existence and sufficiency of the accusation of crime against the accused.- Therefore if upon the hearing it is developed that the defendant has committed no offense, he is released and discharged; if the contrary be developed he is bound over as required by law to await the trial upon the merits. In this respect the proceedings are not at all dissimilar from those had before an examining court presided over by a justice of the peace. In an examining trial on habeas corpus, like an examining trial before a justice of the peace, the proceedings, including all the testimony, are reduced to writing, certified to, and filed in the proper court. Code Crim. Proc., arts. 181, 182, 267.

By article 170, Code of Criminal Procedure, the court is required to examine the writs and papers attached to it, and if no legal cause for the imprisonment or restraint appears it is required that the appellant shall be discharged. By article 171 it is expressly provided that if the party stands indicted for a capital offense the judge or court shall nevertheless hear such testimony as may be offered on the part both of the applicant or the State, and may either remand the defendant or admit him to bail as the law and the facts of the case may justify.

Article 174 provides for the action of the court upon examination, and declares that the judge or court after having examined the return and the documents attached and heard the testimony offered on both sides, shall, according to the facts and circumstances of the case, proceed either to remand the party into custody, admit him to bail, or discharge him, provided that defendant shall not be discharged after indictment without bail.

Article 176 declares that where upon an examination under habeas corpus it shall appear to the court or judge that there is cause to believe that an offense has been committed by the prisoner, he shall not be discharged, but shall be committed or admitted to bail according to the facts and circumstances of the case.

Article 181 requires the proceedings to be entered of record.

Article 182, if the proceedings are had in vacation, requires that the proceedings shall be written. The judge shall require the proceedings to bewritten and certify to the same and file with the clerk of the court having jurisdiction of the offense.

Article 188 provides that if the accusation against the defendant for a capital offense has been heard on habeas corpus before indictment found, and he shall have been committed after such examination, he shall not be entitled to the writ, unless, etc.

I have cited the above provisions from our statute to show that a judge or court when hearing a habeas corpus proceeding sits as an examining court or examining magistrate. The proceedings on the trial are denominated and characterized throughout as “an examination.”

In his work on Habeas Corpus Mr. Church says: “In ordinary criminal proceedings commitments are seldom made comparatively speaking by courts of general jurisdiction. By statute, however, in some of the States the judges of the courts of general jurisdiction are made magistrates and are vested with the authority to hold accused persons to answer. Commitments made by these magistrates are undoubtedly entitled to more consideration than a commitment made by an ordinary justice of the peace.” P. 304, sec. 238.

My views as to this matter are fully sustained by the opinion of Judge Willson, a late and most distinguished and honored member of this court, in the case of Evans v. The State, 12 Texas Court of Appeals, 370. In that case the State was permitted to produce orally the testimony of a witness ás it had been given in a previous examination of the case on habeas corpus. The objection to the introduction of the testimony was that a proper predicate for its admission Avas not laid as provided by our statute, Article 772, Code Criminal Procedure.

Ho question was raised to the admissibility or competency of such testimony had the predicate been properly laid, and the inevitable conclusion from Judge Willson’s opinion is, that had the predicate been properly and sufficiently laid such testimony would have been competent and admissible. He nowhere expresses the slightest doubt as to the competency of such evidence if the proper predicate for its introduction had been laid.

So far as I have been able to ascertain, the practice in the courts of this State has always been uniform in the admission of such testimony where the proper predicate for its introduction has been laid, and so far as I know the question of its competency and admissibility is raised for the first time in this case, not indeed by the attorneys who objected to the admission of the testimony in the court below, but by the opinion of the majority of the court, which goes beyond and outside of the objections which were presented.

If the opinion of the majority of this court in this case be correct, then we have no statute providing a rule for the reproduction of testimony which has been given on a habeas corpus trial, and unless such testimony can be availed of by some other legitimate means already provided for in the code, it would be well for our Legislature to supply this defect in the laws of our State, for we can readily imagine innumerable instances in which if such be the rule justice will be frustrated and the vindication of the law rendered impossible. If, however, the rule laid down by a majority of the court be correct, then it may be well to consider whether or not such evidence is not legitimate and admissible under other provisions of our Code of Criminal Procedure. If we have no express statute regulating the matter, then onr code provides, that “whenever it is found that this code fails to provide a rule of procedure in any particular state of case which may arise, the rules of the common law shall be applied and govern.” Code Crim. Proc., art. 27. And again, “the rules of evidence known to the common law of England, both in civil and criminal cases, shall govern in the trial of criminal actions in this State, except where they are in conflict with the provisions of this code or some statute of this State.” Code Crim. Proc., art. 725. “The English practice under 2 and 3 Philip and Mary, chapter 10, always was to read the depositions of witnesses taken upon oath in the presence of the prisoner and the magistrate before whom he had been brought on a charge of felony, and to give them in evidence on the trial of an indictment for the same felony if it were proved on oath to the satisfaction of the court that the witness was dead. * * * So it has been said if due diligence has been used and it is made manifest that the witness has been sought for and can not be found, or if he be found and fell sick by the wayside, his deposition may be read, for that in such case he is in the same circumstances as to the party that is to use him as if he were dead.” 1 Archbold’s Crim. Prac. and Pleading, Pomeroy’s Rotes, 8 ed., pp. 454,455, note 1, citing B. R. 239; Hawkins P. C., b, 2, chap. 46, sec. 18.

If it be true that we have no rule of procedure with regard to the testimony had on habeas corpus proceedings as to its admissibility on the future trial of the case, then under the foregoing authorities such evidence could be admitted under the rules and procedure of the common law and would be legitimate evidence, because it can not be said there is any express provision of our code which would be in conflict with such procedure. But as stated above, in my opinion the evidence was admissible under the provisions of the Code of Criminal Procedure, articles 772, 774, and so believing I am constrained to dissent from the opinion of the majority of the court holding otherwise.