O'Connell v. State , 18 Tex. 343 ( 1857 )

Wheeler, J.

The appellant was convicted at the Fall Term of the Court, 1855. After verdict, he moved the Court for a new trial. His motion was overruled, and he appealed. The case was returned to this Court at the last Term, and argued by counsel for the appellant, upon errors assigned in the judgment. But on inspection of the record it was found that the District Court had omitted to cause the judgment to be entered upon the verdict, as required by the Statute ; and on the authority of Burrell & Burns v. The State, decided at the same Term, the appeal was dismissed, because of the omission to enter judgment upon the verdict At a subsequent Term of the District Court,—the last Pall Term,—the Court perfected the record, by causing the formal entry of judgment upon the verdict. This action of the Court is now assigned as error.

The entry of judgment in this case was in accordance with a settled practice, which has been recognized by this Court in numerous cases. Where, as in this case, the Court has failed to enter up judgment upon the verdict at the Term, but has caused entry to be made at a subsequent Term, this Court has uniformly entertained the appeal. The first case which is recollected, was determined at the second Term of the Court, and was, it is believed, the case of The Bank v. Simonton, reported in the second volume of the Texas Reports. The Court had omitted the entry of judgment upon the verdict; and there was a motion to dismiss the appeal on that ground. The appellant applied for a certiorari to perfect the record, which was granted. And, in answer to the certiorari, a transcript of a judgment was returned which had been entered upon the verdict at a subsequent Term, now for then. This Court thereupon overruled the motion to dismiss, and entertained the appeal. The report of the case does not contain the ruling upon this point, for the reason, doubtless, that it was disposed of without a written Opinion. There have been many similar cases since, in all of which there has uniformly been the same ruling. The point was fully and expressly decided in the case of Johnson v. Smith, et al., (14 Tex. R. 412,) and the power of the Court thus to enter up judgment upon a verdict after the Term was maintained. In that case there was a verdict rendered for the defendants at the Spring Term of the Court, 1849. Subsequently, at the Spring Term, 1853, on the motion of the plaintiff, the Court entered up judgment upon the verdict, now for them. A motion to dismiss the appeal was overruled ; and we then observed, that the practice of thus entering judgment had been of not unfrequent occurrence ; and.' had in more cases than one, received the sanction of this Court; that appeals from judgments thus rendered, had invariably been entertained. The judgment, it was observed,, has the same force and effect, as a judgment of the Court, as if the entry had been made at the proper time. The verdict decides the issues, and while it stands, conclusively determines the litigation. The judgment is the legal conclusion and consequence, which results from the verdict. If the entry of it at the time, is omittted by inadvertence of the Judge or the Clerk, there is nothing in principle, to prevent the Court from causing the entry to be made, in furtherance of justice, at a subsequent Term. It is allowed upon the principle, stated by the Supreme Court of North Carolina, that the Court has a right to amend the records of any preceding Term by inserting what had been omitted, either by the act of the Court or the Clerk. And a record so amended stands as if it had never been defective, or as if the'entries had been made at the proper time. (5 Iredell, 12; State v. King, Id. 203.) The form of the entry cannot be material, so that it embodies the legal effect and consequence of the verdict. Although not so expressed, it is, in effect, the entry of judgment now for then. The legal effect is the same.

As respects the po wer of the Court thus to perfect the re rord, it can make no difference whether it be a civil or a criminal case; and the right to exercise it in such a case cannot be otherwise considered than as the settled law of the Court.

But if it were an open question, there can be no doubt of the propriety of its exercise in a case like the present; because it is evident, the entry of judgment, required by the Statute, upon appeal in a criminal case, is but a formal entry, and operative only for the purpose of enabling this Court to revise the-case upon appeal; and the judgment, for ail other purposes, re mains to be rendered or pronounced, after the decision upon-the appeal. The language of the Statute is : “ That in case- “ of conviction before the District Court in any criminal case, “ and an appeal taken therefrom, the judgment of the District “ Court shall be entered in accordance with the verdict, but no “ sentence of execution shall be pronounced by said Court.” (Hart. Dig. Art. 473.) The judgment which is thus required to be “ entered,” is not to be carried into execution ; and consequently is not the judgment of the Court, or operative for any other purpose than the merely formal one of presenting the record complete in the appellate Court. The sentence, which is the judgment of the Court for all other purposes, remains to be pronounced after the disposition of the appeal. This is farther apparent from the provision of the 9th Section, as follows : “ The Supreme Court, in case the judgment of the “ District Court be affirmed, shall direct such sentence to be pro- “ nounced by the District Court as is directed by law, and such “ as the District Court might have pronounced in case no appeal “ had been taken.” (Hart. Dig. Art. 476.) So that really and in fact, the judgment which is to affect the party otherwise than beneficially, is not rendered or pronounced by the Court, until after the appeal has been disposed of. The previous entry of judgment is for the appellant, to enable him to prosecute his appeal. It is solely for his benefit that it is required to be entered. If not entered, and his appeal is dismissed, and thus finally disposed of, there is nothing to prevent the final sentence from being pronounced and carried into execution, For it is an undoubted principle .of the Common Law, that where the rendition of judgment is delayed, or suspended by any legal means, as by motion for new trial, in arrest of judgment, appeal, or other proceeding, the judgment may be rendered when the suspensive proceeding has been determined. By the Common Law, “ where parties are hung up by act of law, neither of them loses his rights, but eventually judgment may be entered nunc pro tunc,” (per Tindall, Ch. J. 8 Bing. 29, 21 Eng. Com. L. R. 431, 432.) The final sentence or judgment, having been suspended by the appeal, when that was disposed of, there was nothing to prevent the Court from proceeding to render final judgment or sentence of execution ; and it was for the sole benefit of the appellant, that the formal entry of judgment upon the verdict was made now for then, to enable him to avail himself of his appeal. This specification of error, therefore, is clearly untenable.

It remains to consider the errors assigned in the proceedings.

The error assigned in the charge of the Court, is, in substance, that it does not distinguish and define the degrees of murder. But it must be observed that the mere omission to give instructions is not error. The Court is not bound in any case to give instructions not asked for by the party. If the charge of the Court was not satisfactory, it was the right of the defendant or his counsel to ask such instructions as he thought proper. If he omitted to ask particular instructions, he cannot assign as error the omission of the Court to give them. It is no objection to the charge of the Court, that it supposes the state of fact which the evidence showed really to exist, and deduced the legal conclusion applicable to such a state of fact. That is precisely what every charge should do. That is the design and purpose of giving instructions to the jury ; it is to inform them respecting the law applicable to the particular case in hand; and the more exactly the charge is adapted to the very case, the more likely will the jury be to arrive at a correct conclusion in the application of the law to the fact. Instruction beyond what the facts call for can never subserve any beneficial purpose ; and may mislead. The charge should be framed and is to be considered in reference to the facts of the case. And we are of opinion that there was nothing in the evidence in this case to call for an exposition of the law upon the degrees of murder. There really is no conflict in the testimony. The witnesses who testify to having seen the original assault, accord perfectly in their statements in every material particular ; and those whose attention was attracted by the noise, and who witnessed only what transpired after the assault was begun, coincide in their statements, substantially in all that is material, with the other witnesses, as to what transpired afterwards. If the witnesses were entitled to credit,—and of that the jury were to judge,—it unquestionably was a premeditated and deliberate homicide, committed under circumstances which did not admit of any extenuation, mitigation or excuse ; and, consequently, was murder in the first degree : under the evidence it could not be of a less degree ; and there was therefore no occasion to instruct- the jury respecting the degree of murder. The case of Shorter v. The People, determined by the Court of Appeals of New York, may be referred to as affording a very forcible practical illustration of this principle, if, indeed, it be not too obvious to n_ed illustration. The prisoner was convicted of murder, and sought a reversal of the judgment for error in the charge of the Court. But although there was error in the charge, yet as it was upon a doctrine of the law of homicide, on which the evidence in the case did not call for instructions, the Court of Appeals held it no ground for reversing the judgment. The question is thus treated in the Opinion of the Court by Judge Bron son : “ Although I cannot concur in that part of the charge to which “ exception was taken on the trial, it does not necessarily fol- “ low that we must reverse the judgment. The evidence did “ not make a case for laying down the law of justifiable homi- “ cide ; and an error of the Court concerning an abstract pro- “ position, having nothing to do with the matter in hand, is not “ a sufficient ground for reversing a judgment. If every con- “ tro verted fact mentioned in the bill of exceptions, is taken in “ favor of the prisoner, the best case which he can possibly “ make will be substantially as follows : There was a sudden “ combat between the parties in the night, in which the de- “ ceased gave the first blow ; but the prisoner entered readily “ into the fight. The deceased had no weapon, and gave blows “ with his naked hands or fists, while the prisoner struck with “ a knife, inflicting not less than nine wounds, one or more of “ which were mortal. After several blows had passed, the “ deceased hallooed, 1 he has got a knife,’ and retreated towards “ the middle of the street. The prisoner followed and contin- “ ued to give blows ; the deceased, at the same time, either “ giving blows or defending himself against those given by the “ prisoner. The prisoner did not leave the side walk. “ the deceased got to the middle of the road, he cried out, ‘ oh, “ boys,’ fell, and died in a few minutes. The prisoner did no- “ thing to shun the combat, nor did he show any disposition to “ stop the fight after it had commenced. Although one witness “ thought the deceased liad the better of the fight at first, no “ important advantage was gained over the prisoner ; he was “ neither knocked down, nor seriously injured, nor was he in “ any danger of life or limb. He followed when the deceased “ tried to escape, still giving blows with a deadly weapon, until " very near the moment when the deceased fell down and ex- “ pired. This (the Judge continues) is the most favorable case “ for the prisoner, which can be drawn from the facts detailed “ in the bill of exceptions ; and much more favorable than any “ intelligent jury would draw from the whole of the evidence. “ But taking the case as I have stated it, there is no color for “ calling it justifiable homicide, or for leaving any such question to the jury. If it was not murder, it was manslaughter “ at the least; and so far as relates to these offences, no exception was taken to the charge.” The Judge here observes : “ When a man is struck with the naked hand, and has no rea- “ son to apprehend a design to do him great bodily harm, he “must not return the blow with a dangerous weapon. After a “ conflict has commenced, he must quit it, if he can do so in “ safety, before he kills his adversary ; and I hardly need add, “ that if his adversary try to escape, he must not pursue, and “ give him fatal blows with a deadly weapon.” The Judge thus concludes : “ As there was no question of justifiable ho- “ micide in the case, the prisoner had no right to call on the “ Court to instruct the jury on that subject; and although the “ instruction given was wrong in point of law, I do not see how “ it can possibly have operated to the prejudice of the prison- “ er. As this is a criminal and a capital case, I cannot but feel “ a strong disposition to give the prisoner a new trial. But the “ law concerning bills of exceptions is the same in criminal as “in civil cases, (The People v. Wiley, 3 Hill, 194, 214,) and “ we must not suffer our feelings to draw us into a bad prece- “ dent.” And the judgment was affirmed by the unanimous opinion of the Court. (2 Comstock R. 193, 202, 203.)

If in the facts of this case there was no color for a charge upon the law of justifiable homicide, or for leaving any such question to the jury, and even an erroneoiis charge upon that subject was no ground for reversing the judgment; most certainly there was nothing in the facts or evidence in the present case, calling for a charge upon the law concerning the degrees of murder ; and the mere omission of the Court to charge upon that subject cannot afford a ground for reversing the judgment.

Finally, there is no precedent or authority for any such distinction as that sought to be maintained by the counsel for the appellant, that the homicide may be proved to have been committed before, but not after the time charged in the indictment as applicable to such a case. “ The time of the commission of “ an offence laid in the indictment is not material, and does not “ confine the proof within the limits of that period ; the indict- “ ment will be satisfied by proof of the offence on any day ante- “ rior to the finding.” (Whart. Am. Cr. L. 220.) There are several exceptions to the rule; but the present 'case is not within them. One exception is, where any time stated in an indictment is to be proved by a matter of record ; there a variance will be fatal. Thus, in an indictment for perjury, the day on which the perjury was committed must be truly laid. (Ibid.) That was the case cited by counsel from 1 Gallison’s Rep. 387. It has no application to the present case. The general rule, as above stated, has always been held in reference to the time when a homicide is alleged to have been committed. It may be proved to have taken place at any time previous to the finding of the indictment.

There is no error in the judgment, and it must, therefore, be affirmed.

Judgment affirmed.