Wright v. State , 73 Tex. Crim. 178 ( 1914 )

This case was affirmed at a former day of this term, and appellant has filed a motion for rehearing, in which he states that the court erred "in subjecting appellant to a trial under a system of law and procedure not in force at the time of the alleged commission of the offense." Appellant contends "that the trial judge announced in open court before entering upon this trial, that defendant would be tried under the law and procedure in force at the time of the commission of the offense, unless the defendant should then and there file a written request that he be tried under the law and procedure in force at the time of announcement for trial," and for this reason he contends that he ought to be permitted to complain of the charge in the motion for a new trial, although he at the time it was submitted to him made no objections to the charge as given. Had the trial judge tried appellant under the old law and procedure, and not submitted the charge to appellant's counsel for criticism and objection, we certainly would allow him to object thereto in the motion for a new trial. But whatever the trial court may have announced before the trial, it is certainly made clear by this record that when the testimony was introduced and closed, the court then prepared his charge and submitted it to counsel as is provided in chapter 138 of the Acts of the Thirty-third Legislature. Appellant then knew the court was not proceeding under the old procedure, but under the new, as adopted by the last Legislature, and if the charge was erroneous, or did not present the issues made by the testimony in such way as appellant desired, why did he not then object to the charge and suggest to the court such amendments to the charge as he thought necessary to protect the rights of his client? Of course, we would not permit one to be misled to his injury if we could prevent it, but the record in this case discloses that the court prepared his charge, submitted it to appellant's counsel, and no objection was made thereto, and no special charges requested. This case was tried on the 8th day of September of last year, and the Act of the Legislature had then been in force for some months, and in this law the Legislature has provided in article 735 that the judge, before argument begins, shall "prepare his charge in writing, and shall submit same to defendant's counsel, who shall have a reasonable time to examine same, and present his objections thereto in writing, distinctly specifying each ground of objection." Why is this required? It is that every right of defendant may be fully protected, and his theory of the case fully presented. It is not intended, nor will it deprive him of any right, but he hereafter must be timely in asserting his rights, and aid the court in securing a fair and impartial trial, and what else should one desire. It is further provided in article 737 that he shall also have a reasonable time, after reading the charge of the court, to present any objection or special charge he may desire to have given. If he asks none, and does not complain of the charge of the court as given, article 743 provides that the case shall not be reversed unless an error was committed calculated to injure the rights of the defendant, and not then unless the error was pointed out in objections made to the charge as given, or in refusal of special charges requested, made at the time of the trial. If it was claimed or asserted that the trial court did not allow reasonable time to examine the charge and specify the grounds of objection, we would review the charge as given, even though the objections were made after the trial. But this is the only instance in which we are authorized to review the charge where the objections were not made at the time of the trial, or unless it is made to appear that a person has not had a fair and impartial trial. The fact that this law took effect after the alleged commission of the offense does not alter the rule where the trial took place subsequent to the time the law became effective. This law is a mere matter of procedure and governs all trials had after its provisions went into effect. A person has no vested right of appeal to this court — this is given to him by the Constitution under such restrictions and regulations as may be prescribed by law, and in some instances a person is denied of any right to appeal to this court although convicted of a criminal offense. We have several times discussed this question recently, but appellant insists so earnestly that the Legislature can not change the rules of procedure in the trial of criminal cases theretofore pending, but not yet tried, we have again reviewed the authorities and text-books. In the case of Manning v. State, 14 Tex. 402, when the Supreme Court had jurisdiction in criminal matters, that court held that the Legislature had the authority to "change the mode of conducting proceedings upon the trial in reference to past as well as to future offenses"; that this would not be an ex post facto law, — it related solely to the remedy. This case has not only been followed in this State, but has been cited approvingly in Beebe v. Birkett, 108 Mich. 234; Sage v. State, 127 Ind. 15; State v. Moore, 42 N.J. 208; People v. McDonald, 42 P. 15. In Wharton's Criminal Law it is held: "A statute subsequent to an offense may change the mode by which it is to be prosecuted, provided the punishment attached to the offense is not thereby increased." (Sec. 43.) Mr. Cooley in his work on Constitutional Limitations says: "So far as mere matters of procedure are concerned, a party has no more right in a criminal than in a civil action to insist that his case shall be disposed of under the law in force when the act investigated is charged to have taken place. Remedies must always be under the control of the Legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice in existence when the facts arose." The trial court would have had no right to have ignored this statute, and had he done so, appellant would then have had real cause for complaint. Neither have we the right to ignore this law, as appellant would have us to do, for, while no appeal would lie from our action, we are but a creature of the law and are bound by the rules and regulations prescribed by the law of the State, and to do otherwise than obey the law as written would be a usurpation of power on our part. Appellant received the punishment formerly assessed for murder in the second degree, and his offense, if not justifiable, was murder in one of the degrees, under the evidence adduced on this trial. The issue of self-defense was submitted to the jury, and they find against this contention. Had some of the criticisms now leveled at the court's charge been made when the court submitted the charge to appellant's counsel, we are satisfied the court would have amplified the charge in some respects as appellant now contends should have been done, but they are not such matters as prevented appellant from receiving a fair and impartial trial. We do not think appellant's counsel noticed these matters at the time the charge was submitted to him before being read to the jury, for we think he is that character of man who would promptly have called the attention of the court to them; yet we have heard some lawyers say that they sat still, let the court take care of itself, in the hope they would catch the court in error that they might assign it in the motion for a new trial, in case a conviction was had. This was not fair to the trial court, and that day has passed in Texas under the recent statute. Lawyers, in fact, hereafter must consider themselves, whether lawyers for the State or defendant, as officers of the court, and lend to the court all the aid they can, to see that a fair and impartial legal trial is had. The Legislature has provided that the "practice of setting traps" for the court must cease, and we will administer the law as written. The objection to a charge must be made before the charge is read to the jury, and if a reasonable time to do so is granted, objections will not be considered on appeal, made for the first time in motion for new trial. This is the command of the law and it we will obey.

The motion for rehearing is overruled.

Overruled.