Parshall v. State , 62 Tex. Crim. 177 ( 1911 )

I have been unable to give my consent to the disposition made of this case by the majority of the court, and shall, as briefly as I may, write my reasons for withholding my approval.

1. Appellant presents by proper bill of exceptions objection that the Act of the Thirtieth Legislature, page 107, is unconstitutional, in that the same is passed in violation of section 38, of article 3, of the State Constitution, that section is as follows:

"Section 38: The presiding officer of each house shall in the presence of the house over which he presides, sign all bills and joint resolutions passed by the Legislature after their titles have been publicly read before signing, and the fact of signing shall be entered on the journals."

The specific objection to this bill is that the journals of both the house and senate not only fail to show that the Act was signed as contemplated by the above section of the Constitution, in the presence of the respective bodies, but on the contrary, conclusively show that the true title to the Act was not read, and that no such bill as the one published and promulgated as law, was in fact signed either by the speaker of the house or president of the senate, in the presence of their respective bodies as required. The journals of the house show, as is made to appear by the bill of exceptions, that House Bill No. 84 was introduced in the Legislature by Mr. Dean, on January 14, 1907, and that its caption then was "House Bill No. 84, entitled ``An Act to amend article 388 of the Penal Code of the State of Texas, so as to make it unlawful to bet at a game played with dice at any place.'" This, according to the journal purports to be the entire caption of the title as introduced. After various other proceedings in both the house and senate, and by free conference committee, as shown by the bill of exceptions, the journal of the senate has the following entry, pages 794-5: "Bills and Resolutions signed. The Chair (Lieutenant-Governor) gave notice of signing, and did sign, in the presence of the senate, after their captions had been read, House Bill No. 84.' ``An Act to amend article 388 of Penal Code of the State of Texas, so as to make it unlawful to bet at a game played with dice at any place.'" House journal, pages 1154-5, has the following entry:

"Bill signed by Speaker. Speaker signed today in the presence of the house, after giving due notice thereof, and their captions had been read severally, the following bills: ``House Bill No. 84.' ``An Act to amend article 388 of the Penal Code of the State of Texas, so as to make it unlawful to bet or wager at any gaming table or bank or pigeon hole or jenny-lind table, or nine or ten pin alley, such as are mentioned in the six preceding articles, or to bet or wager any money or other thing of value at any of the following games, viz.: poker dice, jackpot, high dice, low dice, dominoes, euchre with dominoes, etc., providing for the search for and the seizure of any gambling device, equipment or paraphernalia and its destruction; and generally to suppress gambling; repealing all laws in conflict herewith, and declaring an emergency."

This is all there is in the journals as evidence Of compliance with the section of the Constitution referred to. The title of the bill, as actually promulgated in the Acts of the Thirtieth Legislature, page 107, is as follows:

"An Act to amend article 388 of the Penal Code of the State of Texas, so as to make it unlawful to bet or wager at any gaming table or bank or pigeon hole or jenny-lind table, or nine or ten pin alley, such as are mentioned in the six preceding articles, or to bet or wager any money or other thing of value at any of the following games, viz.: poker dice, jackpot, high dice, high die, low dice, low die, dominoes, euchre with dominoes, poker with dominoes, sett with dominoes, muggins, crack-loo, crack-or-loo, or at any game of any character whatever that can be played with dice or dominoes, or at any table, bank or alley, by whatever name the same may be known or whether named, or not, or matching for money or anything of value; also by adding to said Code articles 388a, 388b, 388c, 388d, 388e, 388f, 388g, 388h, 388i, 388j, 388k, 388l, 388m, and 388n, making it a felony punishable by confinement in the penitentiary for any person directly, through an agent, or as agent for another, to keep any house, or place to gamble with cards, dice, dominoes or upon anything whatever, or where people resort for such purpose or to exhibit for the purpose of gaming, any table, bank, alley, machine or device whatsoever; or to rent or keep any such place, table, bank, alley, machine or device whatsoever for the purpose of gaming; providing for the search for and the seizure of any gambling device, equipment or paraphernalia and its destruction; and generally to suppress gambling; repealing all laws in conflict herewith, and declaring an emergency."

It will be seen by comparison that the journal of the senate shows that the title of the bill, as originally introduced, was read in the house, and that a bill containing that title and number 84 was signed by the Lieutenant-Governor, in the presence of the senate. The journal of the house shows that a certain bill No. 84, containing an entirely different title, was read in the senate, and signed by the Speaker. This title, as read in the house, however, is not as stated by a majority of the court in its opinion, merely a part of the caption of the title of the bill as promulgated; on the contrary, the caption read in the house composes in the main about the first six lines, and the last four lines, substantially, of the caption of the title to the bill promulgated, while the title read in the senate is entirely different from either. The majority opinion holds, and I think correctly so, that the fact of signing "must affirmatively appear in the respective journals." It is my opinion that these recitations from the journals do not show the fact that the bill promulgated as law was in fact signed in the presence of the respective houses, in the manner required by the Constitution. If the journals show anything, the journal of the senate shows that a bill with the original title, which was only about two lines in length, was signed, and all had reference to changing the law relative to one misdemeanor, and the journal of the house, if it shows anything, shows that a bill No. 84 was signed with caption of about ten lines in length with an enlarged scope for its purposes, while the bill promulgated as a law is entirely different in its purpose and scope from either of the bills shown to have been signed, either in the house or the senate, and covers entirely new fields of legislation.

Now, if we accept these journals for any purpose, they must be accepted for all purposes, and if they show anything at all they show that the bill promulgated as a law was never in fact signed in either house, nor was the caption thereof ever read publicly before signing, as required by the Constitution.

The section of the Constitution referred to, when narrowed down to the point at issue, reads: "The presiding officer of each house shall in the presence of the house over which he presides sign all bills . . . passed by the Legislature, after their titles have been publicly read before signing, and the fact of signing shall be entered on the journals."

"The fact of signing shall be entered on the journal." What is "the fact of signing?" Does it mean the physical act? If so, how could this physical act be entered on the journal? What kind of an entry would be made? How are we to know what bill was signed, unless we hold the fact of signing to mean the character of signing spoken of in the Constitution? What signing is there described? The signing after the title has been publicly read. How are we to know this fact? By reference to the journal which article 3, section 12, of that same instrument provides shall be kept. If this is not the true construction of this article, then there is no way of determining that "the fact of signing" any particular bill has been complied with. It will not be permitted to look to the number for identification, and ignore the title when it forms a necessary part of the very evidence sought to be used, nor can any part of the journal be used as evidence when it suits the purpose of identifying the bill that was signed, and discard the same when it shows that the bill signed was not the one promulgated as law. It can not be said the journal is evidence in behalf of the validity of the law, and ignore it when sought to be used for the opposite purpose. It can not be said this different title, which the journal shows was read, was just an error of the clerk, when we are speaking of the minutes of a deliberative body that are required by the organic law to be kept, and which, as a matter of common knowledge, are daily published, read and corrected by members of that body. The truth, as it appears to me, is that there is no way of knowing "the fact of signing" any bill, is entered in the journal, unless we go to that journal for description, and when this is done we must accept its verdict. I am, therefore, of the opinion that the bill of exceptions in this case, and the journals of the house and the senate, fail to show even "the fact of signing" of the Act under which this prosecution is had, as required by law.

I am further of the opinion that these journals each conclusively show that the title to the Act was not publicly read, as required by the Constitution. The matter seems to have been lost sight of, that though the bill, title and all, which was promulgated as law, was in fact passed, or if the clerk by mistake, or otherwise, as the journal conclusively shows, did read, as its title, just before signing, something materially different from its true title in place of reading its true title, and that fact is properly before this court in a way requiring that it must be considered, then this would nullify the proposed law, and the bill of exception before this court, which is true according to the journals of the respective branches of the Legislature, can not be held to show "the fact of signing" any bill and entering the same in the journal, without also in this case, by the same evidence, showing that this title was not publicly read, as required.

I quote with approval the following paragraph of appellant's brief on motion for rehearing: "We further think that even under this court's opinion, which we admit is supported by some general authorities upon the point decided in the first paragraph of the opinion that where the Constitution requires that a record of the signing shall be made, that it further evidently, by a proper rule of construction, required that the caption of the bill so signed and required to be read should also be entered on the journal in order that it might definitely be determined what bill was signed by the Speaker or Lieutenant-Governor." Let us see: The Constitution evidently meant some thing. It meant to guard against something when it said that the signing should be shown of record. Now, if the signing of a bill, though by a proper number, having an entirely different caption, meets the requirements of the Constitution as held by this court, then what is the object, purpose or beneficial effect of this clause of the Constitution? Its whole object is destroyed if this bill is held good. Our contention is that the signing means the signing spoken of by the Constitution, that is, that the titles were publicly read and the bills signed, and this entire fact must be shown by the journal. "The fact of signing" means the fact of signing under the conditions and with the formality as is required by the same section and the same sentence of the Constitution. We can not for the life of us see that any other construction is other than a plain evasion of the solemn mandate of the Constitution which was enacted for the stability of the government and for the protection of life and property, and to prevent wire working, scheming and fraudulent engineering of legislation through the house and senate to the injustice and injury of the people.

"If this construction applies in this case it must apply in other cases where it is positively known that crookedness and corruption were practiced, and though the evidence be abundant to show this fact. This opinion will stand as a precedent to prevent an investigation and to destroy the bulwark of protection. If the court feels that it is bound by former decisions to the extent announced in paragraph No. I of its opinion, we do earnestly suggest to the court that they do not carry this, as we conceive, erroneous construction further and thereby destroy section 38 of article 3. We think it is going far enough when the courts say that though the Constitution requires a thing shall be done, yet we hold you must not and can not show it was not done. For why evidence upon this point is not admissible we do not yet on principle understand. We can't exactly understand what remains of the obligation of every citizen, and especially of every officer, that he will uphold the Constitution when the higher courts say the Legislature may violate it with impunity, and though the evidence be abundant and absolutely conclusive, that under our form of government it will be permitted and not allowed to be questioned."

I have said this much upon the rule of construction adopted by the majority of the court, that only that part of section 38, as follows: "And the fact of signing shall be entered on the journals" is mandatory, and that the other is either merely directory, or if ignored by the Legislature, the law will presume conclusively that it has been complied with, though the journal evidence of its violation be abundant. I will not enter into a discussion at length upon the question of the correct rule of construction of constitutional provisions in general, or all of section 38 of article 3 of our State Constitution in particular. Suffice it to say, that most of, if not all, the sections of article 3 were intended by the framers of the Constitution as limitations upon the powers, acts and conduct of the Legislature; that the framers of our organic law had a purpose in placing these limitations in that instrument, and if they may be ignored at will by the Legislature, and the State or the citizen held powerless to show that they have been violated, then it seems that they were written in vain, and have no place in such an instrument. This, though the people, the source of all power under our form of government, uttered them not as entreaty, but as a command. They are not in the form of a supplication, but their purport is "Thou shall not."

I will not discuss this further, but content myself by saying that I agree fully with the reasoning, the logic, and the conclusion reached by the court, speaking through Judge Willson, in the case of Hunt et al. v. The State, in 22 Texas Crim. App., 396, as was reaffirmed by the same court, speaking through Judge Hurt, in the case of Ford v. The State, 23 Texas Crim. App., 520, and again reaffirmed by the same court in Wright v. The State, 23 Texas Crim. App., 313. I am aware that there is high authority to the contrary, both in this and some other States, yet, so long as I am given authority to construe the instrument which gives this court life, I shall always be constrained to hold that the voice of the people, speaking through their Constitution, is supreme and must be obeyed by each of the three branches of the government. The people created their government and its various branches, and the created are not greater than the creator.

2. Appellant was convicted of keeping room number six (6) in the Waverly Hotel for the purpose of being used as a place to gamble with cards. This conviction was had under one of the subdivisions of article 388b of the Penal Code. Appellant contends that this article of the Penal Code, or at least the subdivision of the same under which he was convicted, was repealed by the Act of 1909, Thirty-First Legislature, page 111, defining and punishing vagrancy.

Article 388b makes it a penal offense punishable by confinement in the penitentiary for any person to keep any premises, building, room or place for the purpose of being used as a place to bet or wager, or to gamble with cards, dice or dominoes. Article 388f declares a gambling house and gaming house means any place where people resort for the purpose of gaming, betting or wagering.

The vagrancy Act above referred to declares that any keeper of a house for gambling or gaming is a vagrant and shall be punished by fine in any sum not to exceed ($200) Two Hundred Dollars.

Is the act of keeping a house for gambling or gaming the same as the act of keeping premises, building, room or place for the purpose of being used as a place to bet or wager or gamble?

A gaming or gambling house is thus defined: "The term gaming houses, the keeping of which is an offense, includes every house, room or place which is owned, occupied, controlled or kept as a resort or place of gathering for the purpose of gambling, wagering, or betting." 8 Am. Eng. Ency. Law (1st ed., p. 166).

This definition is substantially the same as the definition quoted and approved by this court in Miller v. State,35 Tex. Crim. 651. Article 388b as above shown makes the keeping of a building, room or place for the purpose of being used as a place to bet, wager or gamble an offense, and article 388f makes the test of such use the fact that people resort there for the purpose of gaming, betting or wagering. It requires no argument to show that identically the same acts and conditions which make a person amenable to the penalty prescribed by article 388b make him also amenable to the penalty prescribed by the vagrancy Act. There is no essential element contained in one offense which is not also found in the other. I am therefore forced to the conclusion that the majority of the court are in error in holding that the vagrancy Act creates a new and distinct offense from that denounced by article 388b of the Penal Code. Is the vagrancy Act, and especially subdivision (k) thereof, a valid and subsisting law?

The duty of enacting effective vagrancy laws is enjoined on the Legislature by the Constitution. The Legislature had undoubted right to determine what act, or acts, shall constitute a person a vagrant, and to prescribe a suitable punishment for the same. In the exercise of this constitutional right the Legislature passed the vagrancy Act above referred to and made a great number of distinct and diverse acts constitute a person a vagrant. Among these acts is the keeping of a gambling or gaming house, as provided by subdivision (k) of said Act.

It can not be doubted that the Legislature intended what it has clearly and unequivocally expressed, to wit: that every keeper of a gambling or gaming house shall be deemed a vagrant and shall be punished as such.

Section six (6) of the vagrancy Act expressly provides that all laws and parts of laws in conflict therewith are repealed. It is clear that the Legislature thereby intended that every keeper of a house for gaming or gambling shall not only be a vagrant under the law, but that he shall be convicted and punished as such and that any and all laws in conflict therewith shall be repealed.

Article 388b being in irreconcilable conflict with subdivision (k) of the vagrancy Act is necessarily embraced in the terms of the express repeal and would be repealed by implication if no repealing clause appeared in the vagrancy Act. Fleeks v. State, 47 Tex.Crim. Rep., 83 S.W. Rep., 381; Robinson v. State, 2 Texas Crim. App., 390; Smith v. State, 44 Tex. 443; State v. Taylor, 85 S.W. Rep., 564; State v. McKee, 104 S.W. Rep., 486; 36 Cyc., p. 1095 F.

After enacting that all laws and parts of laws in conflict with said vagrancy law are repealed the same section continues: "Providing the penalties herein named shall be cumulative and a conviction for any offense herein named shall not be a bar to any other prosecution under any other criminal statute."

I am unable to agree with the majority of the court in their construction of this proviso. The Terrell Election Law (Acts 28th Leg., 158), provided in section 144 thereof that said Act should be cumulative as to penalties for violating the election laws of the State, as to the mode and manner of any law except such laws as are inconsistent with it, or in conflict therewith. This section of said Act was before this court for construction in the case of Fleeks v. State, 47 Tex.Crim. Rep., 83 S.W. Rep., 381, and this court held that although said section of said law made the same cumulative as to penalties it must be held to repeal former laws concerning the same prohibited acts.

I think the proper construction of this section of the vagrancy Act is that the Legislature intended that the acts therein denounced should constitute vagrancy and should be punished as therein provided, and that such punishment should be cumulative.

This attempt to make the punishment of the vagrancy Act cumulative is contrary to the express provisions of the Bill of Rights, and therefore null and void. Being void in itself, it necessarily falls and leaves the vagrancy Act in full force and effect as though no such illegal and void provision had been incorporated therein.

3. I can not agree with the opinion of the majority of the court in holding that there was "no such misconduct of the jury shown as requires a reversal of this case." My opinion is that the facts shown by the bill of exceptions in this case bring the misconduct of the jury clearly within the rule announced by Judge Henderson, in Early v. State, 51 Tex.Crim. Rep., 103 S.W. Rep., 873. The officer in charge of the jury, and one of the jurymen, testified that almost, if not all, of the jurors after being empaneled and sworn in the case, and without the consent of the court, held one or more conversations of varied lengths with persons unknown to the officer, and that the officer did not pay any attention to the conversations, know who they were talking to, or what they said. The State introduced each of the jurors in rebuttal, and with one exception, each of them testified that he had one or more conversations over the 'phone of various lengths, and gave the names, according to their testimony, in most instances, of the persons to whom they talked. A number of these persons were brought before the court and corroborated the jurors. Without, at this time, considering those conversations where the persons to whom the juror purported to talk were brought before the court and testified that the conversations were innocent, the juror W.W. Moore testified that he talked to his wife and mother, one conversation with each, but neither Mrs. Moore, Sr., nor Mrs. Moore, Jr., were brought before the court. J.T. Duncan, another juror, said he talked to his next-door neighbor, Mrs. Scruggs, twice. Mrs. Scruggs was never brought before the court. J.S. England, another juror, testified that he talked to McClain's livery stable in Waco, and to a Mrs. Kayser at Riesel. Neither the person he talked to at the livery stable, whom he did not identify in his testimony, or Mrs. Kayser, were brought before the court, so in my opinion three of these jurors, having improperly held conversations over the telephone with unknown persons, each of them on two different occasions, and there being no evidence as to who they talked to except their own, and no explanation made of what the conversation was about, except such as was made by the jurors themselves, I hold that the case is in identically the same condition as if no explanation had been made with reference to any of the jurors, for if a violation of the inhibition of the law by three of the jurors is not sufficient to require a reversal, then a violation by each or all of them of a similar character would not be sufficient. It must be borne in mind that save and except from the jurors themselves we have no evidence from any source as to who they talked with, because the officer in charge says he does not know. I endorse the entire opinion of Judge Henderson in the case of Early v. State, supra, and shall quote from the same at length. After quoting article 728 of the statute, to the effect that no person shall be permitted to have conversation with a juror, after he has been empaneled, except in the presence and by the permission of the court, and disposing of the proposition that a conversation by a juror over the telephone with another person is nevertheless a conversation, Judge Henderson says: "It is insisted that where it is shown that a conversation occurred between members of the jury and others over the 'phone not in the presence and not by permission of the court, as here, either one of two rules should apply: First, that it will be absolutely presumed that injury occurred to appellant; or, if this presumption is not indulged, that the burden is on the State to show that such injury could not have occurred. With regard to this misconduct of the jury, which related to their separation, which is analogous to the proposition herein involved, since McCampbell v. State, 37 Tex.Crim. Rep., 40 S.W. Rep., 496, the doctrine therein announced has been followed without a break, to wit: That where a separation of the jury trying a felony case has been shown, and opportunity presented for the juror or jurors to be tampered with, injury to appellant will be presumed. Whether this rule be applied and adopted here, or the milder one to the effect that where jurors are shown to have conversed with others, the burden is then on the State to show what the conversations were about, and that no possible injury accrued to appellant, the result, so far as this case is concerned, must be the same. On the examination of this issue before the court, some of the jurors were examined, but not all. They stated that they talked with their wives, and in one instance one of the jurors with another lady neighbor about home matters. All of the jurors were not examined. The deputy sheriff was examined. He heard some things that the jurors said, but he could not hear what was said at the other end of the line. None of the parties who conversed with the jurors were summoned or examined. Heretofore we have held with reference to the separation of jurors that these would be liable if tampered with to suppress the fact, and that therefore little reliance should be placed on their testimony, and the same rule would apply with reference to conversations. So that the necessity for the examination of others than the jurors with whom such conversations may have occurred seems to be necessary. This was not done. We accordingly hold that the burden thus shifted to the State was not discharged by it. We believe in the face of these statutes above cited that it would be a bad precedent to hold that jurors out of the presence of the court, and not by permission of the court, should be permitted to converse, with other persons over 'phones, and certainly where such conduct does occur it should be held obligatory on the State to show beyond any question that the jurors were not tampered with. Any other rule would destroy a barrier set up by the Legislature intended to protect the purity and integrity of the jury box."

Under this ruling I can but see that this case should have been reversed upon the misconduct of the jury. It is true the jurors in this case may have been honest men, and this court, to reverse this case upon the misconduct of the jury, is not called upon to cast any aspersion upon them as such. It was not the honest juror who necessitated the statute inhibiting all character of conversation with the jurors after being empaneled and sworn, but it was the mercenary and dishonest one who occasionally finds his way to the jury box that provoked this legislation; it was to protect the citizen in such an emergency against possible injury that the statute was written, and by reason of the fact that the law could not look into the consciences of men, the application of the statute was made universal. It is the dishonest juror who would be first to acclaim the sincerity of his purpose — loudest to profess the sanctity of his oath, and the last to admit anything bordering upon impropriety on his part. Not being allowed to accept the unsupported evidence of a juror, as to the name of the person with whom he talked, and the character of the conversation he held with such person, in this case we are left at sea, so far as knowledge acceptable to the law goes, as to the identity of the persons with whom any of the jurors talked, for the officer does not profess to say that the jurors in their testimony enumerated all of the conversations they had or gave correctly the name of the persons to whom they talked. I am of the opinion that both the statute and the rule announced in the Early case are wisely provided safeguards around the purity of the jury system and should be observed to the letter. McCampbell v. State, 37 Tex.Crim. Rep..

4. There is one other question raised by appellant upon which I can not agree with the majority opinion. This is in regard to appellant's application for a continuance, and I will express myself briefly upon the principle involved. Promptly upon indictment on the 11th of March, 1909, the appellant caused subpoena to be issued in the case to McLennan County for the witness George Weathered. The case was at that time set for 24th of March, 1909, and the subpoena was returnable to that date. The subpoena was duly executed on the 15th of March by summoning the witness. On the 17th of March the trial court made another order resetting this case for March 29. In my opinion it was then unnecessary for any witness, or even the defendant, to attend court on the 24th of March, when he knew that the case would not be called until March 29, and the defendant was not called upon to attend court and call his witnesses on March 24, nor was a witness who was absent on March 24 in disobedience to his subpoena, because the order of the court changing the setting amounted to a command, and the witnesses took notice to be present on the 29th, and that they were excused from attendance on the 24th. Appellant would not have been entitled to an attachment or other process for a witness who was absent on the 24th, unless the conditions or his knowledge were such as to bring him within some of the statutory exceptions and would justify him in making an affidavit for additional process. The witness George Weathered was not present on the 29th when the case was called for trial, and the defendant made his first application for a continuance in proper form on account of his absence. The facts which he alleged he expected to prove by the witness were highly material to his defense, and while the court in the majority opinion intimates that if the witness had testified to the facts set out in the application, they would not probably have been true, still they do not base the determination of the issue upon that point, and further the defendant is entitled to have the facts passed upon by a jury, and ordinarily it is not proper for either the trial court or this court to be called upon to say whether the facts alleged, if testified to, would probably be true or untrue. This is a matter which our Constitution guarantees shall be entrusted to the discretion of a jury, and the defendant is entitled to have all of his case presented to that jury, if he is diligent. The application for a continuance says that the witness, during the interim between March 17, the date on which the order was made resetting the case, and March 24, the date on which the case was originally set for trial, was notified of the resetting, and had never disobeyed his subpoena until the 29th, when he was absent; the majority opinion holds that this amounted to the defendant taking upon himself the duty of producing his witness on the 29th, and substituting himself for the process of the court. I do not think this is correct. On the contrary, I think it was the duty of the appellant to notify the witness, and if the witness was local it would save him the trouble of attending court, and if foreign, it would save the State the expense of an unnecessary trip of the witness to the court. The court had no use for the witness until the 29th, and would not have recognized him had he put in an appearance. The subpoena taken in connection with the order of the court was notice, and a demand upon the witness to be on hand on the 29th, and not before. It was doubtless to avoid the necessity of having all the witnesses attend court on the 24th, when it was evidently known that the case would not be tried on that date, that the court called the case up on the 17th, several days in advance, and reset it for the 29th. This was a proper consideration on the part of the court for the witness, and for the finance of the State. I am of the opinion that the application for a continuance was good, and that the court erred in not granting said application, and in overruling the paragraphs in motion for new trial based upon said application, and that this court is in error in not sustaining appellant's contention upon this point.

The above are some of the reasons why I can not agree with the majority opinion. I dissent.