Dunn v. State , 92 Tex. Crim. 126 ( 1922 )

Conviction was for murder, punishment being assessed at sixty-five years confinement in the penitentiary.

This case has been before the court on two former occasions; opinions will be found reported in 85 Tex.Crim. Rep. and 88 Tex.Crim. Rep..

When the case was called for the instant trial appellant interposed a plea of former jeopardy, in which he substantialy avers that he was put upon trial in this case on the 26th of January, 1920. He alleges that a jury was impaneled and sworn, after which his plea proceeds as follows:

"Thereupon the court announced that it stood adjourned until 1:30 o'clock P.M. and directed all of the parties to be in court at that time. That before the jury left the courtroom, one of the jurors, viz: Paul Cross, stated to the court that he did not want to serve on the jury; that he had an excuse. The court asked him what his excuse was, and he said he had a sick child, and the court told him that he should have interposed his excuse at the time the court called for excuses from the jurors and that it was too late now for the court to entertain his excuse, and the court declined to hear the excuse of the juror or to entertain the same, and directed the Sheriff to take charge of the jury and have them back in court at 1:30 P.M. When the court reconvened at 1:30 P.M., a deputy sheriff who was in charge of the jury announced to the court that he had received a telephone message informing him that the juror Cross had a sick child, and the juror wanted to be excused. The court asked the attorneys what they wanted to do about the matter, and the attorneys for the defendant said that they were willing to excuse the juror. The defendant did not say anything and was not asked if he consented for the juror to be excused or not. The court conducted no investigation and made no inquiry in reference to the seriousness of the illness of the child except to hear what the deputy sheriff had to say about the matter, and excused the juror Cross and the trial proceeded before the eleven remaining jurors. The Juror Cross was himself neither sick nor otherwise incapacitated, but was able to proceed with the trial of the case. That after the juror Cross was excused, the district attorney and the lawyers for the defendant tried to agree on another juror, but were unable to do so, and then the parties agreed to try the case before the eleven remaining jurors and the case was tried before said eleven remaining jurors."

All averments were made necesary to show the trial in the instant case was upon the same indictment and for the same offense as that for which he was tried in January, 1920. No answer was filed by the State joining issue with appellant on the facts set up in his plea, but a general demurrer thereto was filed, and the trial judge refused to entertain the plea of jeopardy, evidently justifying his action from a knowledge of the records in the case, for he explains the bill by certifying that the case was tried, appellant convicted; that the case was appealed and reversed and then stood again for trial. Under he authority of Hipple v. State, 80 Tex. Crim. 531, 191 S.W. Rep., 1150 it may be conceded that the plea of jeopardy was good as against a general exception. It is the general rule in this State, well supported by authority, that a plea of jeorpardy, being sufficient in law, raises an issue of fact which should be submitted to the jury for its determination. Appellant contends that he has brought himself within that rule and that the court should have submitted his plea of jeopardy in the instant trial. His contention should be sustained unless the record shows this as an exception to the rule. If facts exist disclosed from the record of the court trying this case which if shown by the State in answer to the plea of jeopardy would have authorized the court to instruct the jury that the plea should not be considered by them, then would the trial judge have a right to take judicial knowledge of those matters so disclosed by the records of his own court which would have that effect? We are not without authority on the proposition that even relative to a plea of jeopardy the trial court may take judicial knowledge of those things disclosed by the record of his own court. Miller v. State, 242 S.W. Rep., 1040 No. 6287 (opinion delivered February 22, 1922, and not yet reported), is authority for that proposition and Johnson v. State, 29 Ark. 31; State v. Bowen,16 Kan. 475, and the other authorities cited in the Miller opinion also support it. See also State v. White, 71 Kan. 356, also reported in 6 American and English Anno. Cases, 132, and authorities collated under notes in last citation. In Woodward v. State, 42 Tex.Crim. Rep., the question was raised that the plea of former jeopardy interposed was not sufficient because it failed to set out the indictment, verdict and judgment in full. In passing upon that question this court used the following language:

"It is not necessary in this case that the plea set up the indictment, verdict and judgment in full, as the court must take judicial knowledge of the orders and decrees entered in its own court; and especially is this true when those orders and decrees were made in the case then on trial."

Assuming this to be a correct proposition of law, and that the court in the instant case could look to its own records, of what facts could the court take judicial knowledge? Appellant's plea asserts that after the juror in question was excused that "the parties" agreed to continue the trial with eleven jurors. The trial judge knew from the records of his court that such trial proceeded and resulted in the conviction of appellant; that an appeal had been taken from such judgment of conviction; that the judgment had been reversed and the cause remanded for a new trial, and was then upon call in obedience to the order of this court. We have a right to look to the records of our own court to fix the identity of the cases, and we find from an inspection of the record in the case of Dunn v. State, reported in the 88 Texas Crim. Rep., at page 21, that the numbers are the same, and that it is the identical case now before us, and was reversed and remanded because the same appeared to have been tried before eleven jurors. The opinion recites that "one juror was excused with the consent of appellant." When we look to the bill of exceptions in that record we find the error assigned based upon the excuse of the identical juror named in appellant's plea of former jeopardy. There is no question about the correctness of the opinion reversing the case upon that trial because even with defendant's consent a trial cannot be had in a felony case with less than twelve jurors, but we may look to the record in that case in connection with the instant bill of exception in order to determine the action of the trial judge in not submitting the plea of jeopardy. That the plea of jeopardy is a personal privilege and can be waived by accused is well established. See Corpus Juris, Volume 16, Sec. 489, and notes under decisions in 6 American and English Anno. Cases, 132. This rule has been recognized many times in this State where juries have been discharged by agreement of accused on trial, and it is not necessary to cite further authority upon this proposition. Jeopardy attached in the instant case when the jury was impanelled and appellant pleaded to the indictment. Jeopardy was as complete at the time the juror Cross was excused as when the plea was interposed by appellant upon the call of the case for the instant trial. After the juror was excused it appears from the plea itself that an effort was made to agree upon another juror and having failed in this, that "the parties" agreed to proceed with the trial before eleven jurors. Appellant was present and cognizant of these proceedings and was evidently taking his chances upon an acquittal at the hands of the eleven jurors, relying doubtless upon Article 20, C.C.P. that a verdict of acquittal, though irregular, would protect him, or that the state having agreed to proceed with the trial with eleven jurors would not disregard the agreement whatever might be the result. Being disappointed at the verdict of the jury he appealed from the judgment of conviction, secured a reversal, and now for the first time seeks to interpose his plea of jeopardy, having remained silent when objection could have been urged to proceeding with the trial after the excuse of the juror Cross. The waiver of jeopardy does not have to be direct but may be implied which is most frequently the case than otherwise. Corpus Juris, Volume 16, Sec. 489; 17 Cyc. 605. We are of opinion that the subsequent proceedings after the juror was excused was a waiver of the question of jeopardy. We cannot escape the conclusion that if the state had joined issue with appellant on his plea and the matters recited had been introduced in evidence it would have been the duty of the court to have instructed the jury to find against appellant. Believing the trial court had a right to take judicial knowledge of the matters disclosed by the records of his own court which would have authorized a peremptory instruction against appellant on his plea of jeopardy, we have been unable to conclude that failure to entertain the plea has in any way resulted harmfully to accused, because the same result would have been reached by either procedure.

In his bill of exception No. 2 appellant sets out in narrative form the testimony of his wife, and at the conclusion of such narrative statement says she was "cross-examined, without objection being urged, as follows." There then appears five pages of questions and answers embracing the cross-examination. The bill nowhere undertakes to point out in what particular the cross-examination infringed upon the rule relative to the cross-examination of the wife of accused, and nowhere does the bill pertinently direct our attention to any particular question that was objectionable.

"A bill of exceptions is too general to be considered if it includes a number of statements some of which are admissible, and there is nothing in the objection to directly challenge or single out the supposed objectionable evidence."

Section 211, page 135, Branch's Anno. P.C., and authorities there collated. The bill is further objectionable for being in question and answer form which has been frequently held by us as not in compliance with the rules relative to bills of exceptions. See Carter v. State, 90 Tex.Crim. Rep.; Jetty v. State,90 Tex. Crim. 346, 235 S.W. Rep., 589; Rylee v. State, 90 Texas Crim Rep., 482; McDaniel v. State, 90 Tex. Crim. 636; Watson v. State, 90 Tex.Crim. Rep..

Appellant requested the following special charge.

"The jury shall be at liberty to determine in every case whether under all of the circumstances the insulting words or gestures were the real cause which provoked the killing. Therefore, you are charged in this case that if you believe, or have a reasonable doubt thereof, that the defendant was provoked, that is, caused, to kill the deceased by reason of and on account of the insulting words that defendant was informed the deceased used in reference to defendant's daughter, if you convict the defendant you cannot convict him of a higher grade of offense than manslaughter."

An examination of the court's charge discloses a full, fair and complete submission of the issue of manslaughter of which there could be no just ground of complaint, in connection with which he told the jury that they were at liberty to determine under all the facts and circumstances in the case whether or not appellant was informed of insulting words or conduct of deceased towards appellant's daughter, and whether such information was the real cause which provoked the killing. The requested charge was erroneous in that it did not take into account the condition of appellant's mind at the time of the killing, nor does it restrict it to the first meeting after having been informed of insults. The charge given by the court covers all these issues in an admirable manner, and safeguarded the rights of appellant at every point.

Appellant requested the court to charge, in substance, that if prior to the time of the killing appellant had been informed of threats which deceased had made against his (appellant's) daughter or against appellant himself, or against any other member of the family, and that such information produced in appellant's mind such a degree of anger as rendered it incapable of cool reflection and that he killed deceased while under such condition of mind that he would be guilty of no greater offense than manslaughter. There is no claim that any such threats were made by deceased at the time of the homicide. The charge substantially asserts as a proposition of law that information to that effect conveyed to appellant which enraged him, and he killed while in such state of mind would be adequate cause to reduce the offense to manslaughter, regardless of when the killing took place. Such is not the law, and the court committed no error in refusing to give the charge in question. If deceased had said or done anything at the time of the killing, which taken in connection with any previous threats uttered by him might have been adequate cause it would have been proper to have instructed the jury with reference to such threats, but no such issue is raised by the evidence.

The court committed no error in permitting the State to introduce proof by Mr. and Mrs. Wingfield that prior to the marriage of deceased to appellant's daughter they had heard appellant make threats that if they married appellant would kill deceased. The objection that the testimony is too remote is not tenable. Taken in connection with all the other facts disclosed by the record the evidence was pertinent and the objection went to the weight of the testimony rather than to its admissibility.

The court properly admitted evidence that the general reputation of deceased as a peaceable and law-abiding citizen was good. Appellant, while declaring that he was not relying upon self-defense, introduced evidence of communicated threats against appellant, and members of his family, and by the evidence of his witnesses raised the issue of self-defense which made it necessary for the court to charge thereon, and rendered testimony as to the general reputation of deceased admissible. (Sec. 2095, page 1176, Branch's Anno. P.C. for authorities).

Special charge No. 3 requested by appellant was upon the weight of the testimony and properly refused by the court.

We have been unable to discover any error committed by the court as complained of in appellant's bill of exceptions No. 9. Under the facts of the case the State had a right to prove the relative size, weight and age of appellant and deceased, and the objection thereto is not tenable.

The evidence in the record is not set out nor reviewed at any length Reference is made to the opinion in the same case reported in 85 Texas Crim. Rep., at page 299 for a recital of sufficient facts to make clear the matters discussed in this opinion.

Finding no errors in the record, the judgment of the trial court is affirmed.

Affirmed.

ON REHEARING. June 23, 1922.