Dent v. State , 43 Tex. Crim. 126 ( 1901 )

I concur with Judge Brooks in the result reached in this case, and desire to make a few observations in regard to three questions only. First, the refusal of the court to continue the case; second, the objection to the introduction of the record of conviction and sentence as evidence; third, the charge of the court to the effect that the judgment and sentence were conclusive of the conviction and guilt of the principal, George Isaacs.

Judge Brooks treated these questions from the authorities which hold that the judgment of conviction of Isaacs was prima facie evidence of the guilt of said Isaacs as against the accessory, appellant herein. I desire to discuss the same matters from the standpoint of their conclusiveness against the accessory under the allegations in the indictment. Our statute provides that "an accessory is one who, knowing that an offense has been committed, conceals the offender or gives him any other aid in order that he may evade an arrest or trial or the execution of his sentence." Thus it will be seen at a glance there are several ways in which a party may become an accessory. This being true, it may be stated as an unquestioned proposition that, where there are several ways by which an offense may be committed, set forth in the same statute, or embraced in the same general definition, and made punishable in the same manner, and are of such character that each act may be considered as representing a stage in the same offense, they may be charged conjunctively in the same count. Where offenses are several in their nature, but yet of such a character that any one of them, when complete, necessarily implies the other, they may be joined in the same count. The pleader may select one of the modes prescribed, and allege it, or he may allege more than one, and this would not render it subject to the charge of duplicity. White's Ann. Code Crim. Proc., sec. 383, for collated authorities. And proof of either would authorize a conviction.

Recurring to the indictment herein, it will be observed that the pleader only undertook to charge appellant's connection with his principal, Isaacs, by reason of the fact that subsequent to Isaacs' conviction he assisted Isaacs to evade the execution of his sentence. Therefore that portion of the indictment which, by way of explanation or historical statement of the case, avers the killing of McGee in Hemphill County, and the return of the indictment in said county for such killing, was not a necessary allegation, and did not call for evidence of the details of the killing. This, being an unnecessary allegation, did not necessarily vitiate the indictment, and therefore could be rejected as surplusage. Such has been the rule in Texas from the beginning. Saddler v. Republic, Dall. Dig., 610; and for collation of authorities see White's Ann. Code Crim. Proc., sec. 382. Where an indictment contains the necessary averments to constitute one offense, and also details facts necessary to, but not sufficient to, constitute another offense, such facts, with regard to the offense defectively alleged, will be treated as surplusage. Crow v. State, 41 Tex. 468; State v. Coffey,41 Tex. 46; State v. Dorsett, 21 Tex. 656 [21 Tex. 656]; State v. Smith, 24 Tex. 285; Henderson v. State, 2 Texas Crim. App., 88; Pickett v. State, 10 Texas Crim. App., 290; Holden v. State, 18 Texas Crim. App., 91. Redundant allegations, and those which are in no manner necessary to a description of the offense, and which are not essential to constitute the offense, and which can be entirely omitted without affecting the charge against the accused, and without detriment to the indictment, are treated as mere surplusage, and may be entirely disregarded as part of the indictment. Gordon v. State, 2 Texas Crim. App., 154; Burke v. State, 5 Texas Crim. App., 74; Hampton v. State, 5 Texas Crim. App., 463; Mayo v. State, 7 Texas Crim. App., 342; Smith v. State, 7 Texas Crim. App., 382; Rivers v. State, 10 Texas Crim. App., 177; Gibson v. State, 17 Texas Crim. App., 574; Holden v. State, 18 Texas Crim. App., 91; Moore v. State, 20 Texas Crim. App., 275; McConnell v. State, 22 Texas Crim. App., 354; Osborne v. State, 24 Texas Crim. App., 398, Watson v. State, 28 Texas Crim. App., 34; Cudd v. State, 28 Texas Crim. App., 124; McLaurine v. State, 28 Texas Crim. App., 530; Finney v. State, 29 Texas Crim. App., 184; Hammons v. State, 29 Texas Crim. App., 445; Taylor v. State, 29 Texas Crim. App., 466; Waters v. State, 30 Texas Crim. App., 284; McDaniel v. State, 32 Tex.Crim. Rep.; Loggins v. State,32 Tex. Crim. 358; Williams v. State, 35 Tex.Crim. Rep.; Lassiter v. State, 35 Tex.Crim. Rep.; Webb v. State,36 Tex. Crim. 41; Jordan v. State, 37 Tex. Crim. 222. That portion of the indictment, therefore, which recites the killing of McGee by Isaacs in Hemphill County, and the transfer of the case from that county to Hardeman County, can be treated as surplusage; that is, it was not necessary to produce the witnesses showing the details of the homicide in Hemphill County. Appellant did not connect himself with Isaacs with regard to these matters, nor until after Isaacs' conviction and incarceration in the penitentiary. His only connection as accessory with Isaacs, the principal, is found in his acts, by which he sought to liberate Isaacs from the execution of the judgment and sentence entered against him in Hardeman County. If the pleader had charged all phases of the statute denouncing the punishment against accessories, and the State had only been able to prove the violation of one, the other allegations could be disregarded by the court. It was only incumbent on the State, under this indictment, to prove the fact that Isaacs was convicted and sentenced in Hardeman County, and incarcerated by virtue of said judgment and sentence in the penitentiary; and that appellant, knowing these facts, succeeded by the means charged in relieving him from such custody. This would have been sufficient evidence in regard to Isaacs being an offender, or guilty of a criminal violation of our law, as found by the judgment and sentence. As the allegations are, so must the evidence be. Therefore the record of conviction and sentence was not only admissible, but was the best evidence, and conclusive of the conviction and guilt of Isaacs.

The continuance was sought for two witnesses, by whom he expected to prove that Isaacs was not present at the homicide of McGee. The judgment of Hardeman County adjudged him guilty of murder in the first degree, and appellant could not go behind that judgment, and inquire into the details of the killing, because he had only connected himself with Isaacs after his conviction and incarceration in the penitentiary. He was not assisting Isaacs to evade an arrest or trial, but only relieving him from the execution of his sentence, and he could only defend against his acts in this connection, and not against acts prior to the conviction. Therefore the court did not err in refusing the continuance, for, if the testimony had been offered, it would have been inadmissible.

When the judgment and sentence were offered as evidence, appellant objected because he was entitled to be confronted by the witnesses against him. That clause of the Constitution has no application to records and judgments, and, but for the earnestness of counsel, would not be noticed. White's Ann. Code Crim. Proc., sec. 1064, for collated authorities; People v. Jones, 24 Mich. 214; Bish. Crim. Proc., sec. 1134. In support of his contention we are cited to Cline v. State, 36 Texas Criminal Reports, 320. That case has no application to this question or this case. Appellant's counsel also rely upon Kirby v. United States, 174 United States, 47, 19 Supreme Court, 574, 43 Lawyers' Edition, 890. This case goes to the extent of holding that the judgment of conviction of the principal is not evidence against the receiver of stolen property. It is not necessary to enter into a discussion of that case, for two reasons: First, there is a marked difference between the relation of receiver of stolen property to the thief as contradistinguished to the accessory's relation to his principal. One connects himself with the crime itself, the other with the offender. Second, to review that case would lead to a discussion not only of the differences between those classes of crimes, but into the rule of prima facie evidence, where judgments are sought to be introduced in both character of cases. However, the Kirby case does assert the proposition that as proof of the fact of conviction the record is not only admissible, but is conclusive. The sentence of Isaacs was necessary, under this indictment, to be proved, as the State's case as charged connected him only with Isaacs after conviction and sentence. The only way by which this could be shown was by the record of conviction and the sentence. This was the best evidence. And, if evidence had been offered of an oral character, the State would have been met with the fatal objection that the records were the best evidence. It is not only the best evidence, but it is the only evidence by which those matters alleged in the indictment could be shown. Germane to this, it may be stated that the judgment and sentence of a court of competent jurisdiction can not be contradicted, varied, or falsified by parol evidence. Vestal v. State, 3 Texas Crim. App., 648; Cox v. State, 7 Texas Crim. App., 495. Hence appellant would not be permitted to introduce parol evidence to impeach the judgment or sentence, or go behind the record, and enter into a discussion of the testimony as to whether Isaacs was or was not present when Tom T. McGee was killed. He was not charged with being an accessory to Isaacs in assisting Isaacs to evade an arrest or trial; and therefore the matters occurring prior to the conviction could not be inquired into by appellant. Even under the rule which might authorize strangers to impeach a judgment, appellant would not be authorized attack the judgment against Isaacs, for it is only those strangers who, if the judgment were given full credit and effect, would be prejudiced in regard to some pre-existing right, that are permitted to impeach the judgment. Freem. on Judg., 3 ed., sec. 335; Wilcher v. Robertson,78 Va. 602. Whatever rights appellant may have had on the trial did not occur prior, but subsequent and subordinate, to the judgment, because his connection with the case only occurred after the conviction.

It is also contended the court erred in charging the jury that the record of conviction and sentence was conclusive evidence of the conviction and guilt of Isaacs. The charge of the court was correct. It is a rule of general application that the legal effect of a judgment of a court of competent jurisdiction is decided by the court, and not the jury. The charge was not, therefore, upon the weight of evidence, as urged by appellant. In Broxton's case, 9 Texas Criminal Appeals, 97, appellant was indicted for carrying tools and chemicals into the jail with the intent to aid the escape of a prisoner therein confined on an accusation of felony. The court charged the jury that the two indictments, capias, and returns of the officers introduced in evidence by the prosecution were sufficient proof to establish the allegations contained in the indictment that Lattimore, the person charged in the indictment and capias, was confined on an accusation of felony. It was insisted that this charge was erroneous, as being upon the weight of the evidence. On appeal this court said it was not. It being a question of the legal effect of indictments and capias, it was a matter peculiarly within the province of the court to determine, and was therefore the duty of the court to charge the jury as to such legal effect. White's Ann. Code Crim, Proc., sec. 811, for authorities. The judgment was conclusive of Isaacs' guilt. Its legality was not the subject of inquiry at the hands of the accessory. A party can not invade the penitentiary and discharge inmates held under confinement and sentence of courts of competent jurisdiction, and upon trial therefor be heard to assert that the prisoner was illegally confined because the facts did not support the conviction. A kindred question was discussed by this court in Cordway v. State, 25 Texas Criminal Appeals, 405. Cordway was placed upon trial for perjury committed upon the trial of one Coy, who had been extradited from Mexico. After being brought to Texas, Coy was tried in Wilson County for a different homicide than that for which he was extradited. In avoidance of conviction, Cordway proposed to take advantage of the fact that Coy, under the extradition treaty, ought not to have been tried in Wilson County, because he had not been extradited for the murder committed in that county. The court held substantially that, if Coy could take advantage of this, Cordway could not. Judge Brooks discussed the effect of the judgment against Isaacs from the standpoint of the authorities which hold that it was prima facie evidence against the accessory of the guilt of the principal. The weight of the authority sustains this proposition under the law under which the accessory in those cases was tried. See the cases cited by him in his opinion. Under our statute and the allegations in the indictment in this case, I believe the judgment and sentence conclusive of the guilt and conviction of Isaacs against appellant, as his accessory. Much has been written with reference to the effect of judgments of conviction of the principal when introduced as evidence against the accessory. A majority, if not all, of the cases hold that it is prima facie evidence of the guilt of such principal as against the accessory. But the question at issue here was not discussed in any of these cases, so far as I have been able to ascertain. The reason why this is so, so far as the English cases are concerned, is patent. In England the offense of accessory was not constituted as charged in this indictment; that is, by rendering aid to a convict to evade the execution of his sentence. There all the acts of the accessory which constituted him such were rendered the principal before his conviction, and after the fact. Therefore, in England the question here discussed could not have arisen; and the principal's conviction could only be used against the accessory where the principal had been convicted subsequent to the assistance rendered him by the accessory; the accessory being on trial subsequent to his principal's conviction. The question there was whether or not a record of conviction under those circumstances would be admissible against the accessory. Even in this state of case, under the authorities in England, as I understand them, the judgment against the principal would be prima facie evidence of the guilt of the principal when introduced against the accessory. In all the cases that have come under my observation the accessory was connected with the principal offender, before the principal's conviction; and this was necessarily so, because the character of crime denounced against the accessory under discussion was not constituted in any of those jurisdictions as it is with us; that is, aiding the principal to evade the execution of his sentence. If the accessory is being tried upon an allegation that he rendered assistance to the principal, in order that he might evade an arrest or trial, then the cases which lay down the prima facie rule might become the subject of investigation and discussion.

All I have said pertains only to accessories after the fact. Accessories before the fact, and the law applicable thereto, are not in this case.

I have not entered into a discussion of void judgments. The judgment in this case in unquestionably one rendered by a court of competent jurisdiction. Of this no question was raised on the trial below. That appellant knew of the rendition of the judgment and the sentence against Isaacs is placed beyond question. He and Isaacs had been incarcerated in the county jail at Fort Worth. Pending the appeal of their cases to this court, they had been incarcerated in the penitentiary at Rusk. They had spent some time together in that penitentiary. Appellant was subsequently pardoned. He then set about to procure the illegal liberation of Isaacs, with the hope of obtaining a heavy reward, and to this end forged the pardon which eventually carried out his design. In forging the reasons why Isaacs' pardon was granted, appellant gave a fair history of his principal's case from its inception, as well as many false reasons why he should be liberated. This was done by procuring a genuine pardon, issued to another party, and erasing the name of that party, and the reasons assigned by the governor for granting that pardon; and inserting therein the name of George Isaacs, and the reasons why George Isaacs was pardoned. I therefore concur with Judge Brooks in affirming this judgment. In my opinion, it was not necessary for the State to enter into the details in regard to the killing of Tom T. McGee in Hemphill County; that the fact he was killed in that county is sufficiently met, so far as this case is concerned, by the judgment of conviction against Isaacs finding him guilty of murder in the first degree, and the consequent sentence imposed for that offense; that the introduction of the judgment of conviction and sentence was not violative of that clause of the Constitution which guarantees to an accused the right to be confronted with the witnesses against him; nor was the charge given the jury by the court upon the weight of the evidence. The court further, and in addition, properly instructed the jury with regard to appellant's connection with obtaining the release of Isaacs from the penitentiary.