Martin v. State , 24 Tex. 61 ( 1859 )

Bell, J.

The appellant was indicted on the 12th day of October, 1855. The indictment against him contains three counts. The first count charges that the appellant “ did falsely make a certain entry on and in the records of the District Court of San Augustine county, the said records then and there being public records; the said falsely made entry, &c., becoming, and being a part of the public records of the said San Augustine county District Court.” The second count, charges that the appellant “ did fraudulently alter a record of the District Court of San Augustine county, the said record then and there being a public record.” The third count charges that the appellant fraudulently altered the records of the District Court of San Augustine county, and proceeds to state with particularity, in what the alleged fraudulent alteration consists. Each count of the indictment purports to set out in hcee verba, the forged entry, which, it is charged, the appellant made in the records of the District Court of San Augustine county.

We do not think it necessary or proper for us to remark upon the testimony in the case, further than to say, that there was evidence that the appellant was the clerk of the District Court of San Augustine county, from about the year 1845, until the beginning of the year 1858. Nearly all the witnesses thought that the entry on the minute-book of the court, which was alleged to be the forgery in question, was written in a feigned hand._ Some of them thought it was written by the appellant. The present clerk of the court testified that the minute-book containing the entry, was one of the record books of the office, and came into his custody when he succeeded the appellant in the clerkship, in January, 1853. There was other testimony in the cause, but we will express no opinion of the sufficiency of the testimony to establish the guilt of the appellant, inasmuch as the cause must be remanded for another trial.

The first question is, supposing the appellant to be guilty, against what law did he offend ? The 26th section of the Act of 21st December, 1836, punishing crimes and misdemeanors, provided, that “ every person who shall feloniously steal, take away, deface, utter, or falsify any record, writ, process, or other proceedings, in any of the courts of this republic, or any office for record,” shall be punished, &c. We are of opinion that this statute did not embrace the offence charged in this indictment. But the 54th section of this Act of 21st December, 1836, provided, “ that all offences known to the common law of England, as now understood and practised, which are not provided for in this act, shall be punished in the same manner as known to the said common law.” The offence charged in the indictment was known to the common law, and might have been punished by virtue of the said 54th section of the Act of 1836, so long as that section was in force. But as respects this offence, the 54th section of the Act of 1836 was repealed by the Act of the 20th of March, 1848. The Act of the 20th of March, 1848, provided, that all laws and parts of laws, conflicting with it should be repealed. The 33d section of the Act of March 20th, 1848, provided, in express terms, for the punishment of this offence, and therefore the Act of 1848 repealed, or took the place of the 54th section of the Act of 1836, so far as this particular offence is concerned.

The Act of the 20th of March, 1848, went into effect on the 1st day of January, 1849. Until the 1st day of January, 1849, therefore, this offence was punishable as at common law, by virtue of the 54th section of the Act of the 21st December, 1836, which had never before, as to this offence, been repealed. After the 1st of January, 1849, this offence was punishable under the provision of the 33d section of the Act of 20th March, 1848, by confinement in the penitentiary.

It is contended, that the offence charged in this indictment, is not embraced within the provisions of the 33d section of the Act of the 20th of March, 1848, because that section punishes the false making, or fraudulent alteration of a public record, only when it is done “ with intent that any person may be defrauded.” It is said, that the section does not reach the case of a fraudulent alteration, or false making of a public record, “ with intent to defraud the State;” but we think the State must be taken to be a “person,” within the meaning of the statute.

I have noticed the provisions of the law of 1836, and of the law of 1848, because it was necessary to do so, in order to present clearly, what seems to us to be an error in the charge of the court in this case. In order to do this, however, we must advert to the statement of facts. There is no evidence contained in the statement of facts, showing or tending to show, at what time the offence charged in the indictment was committed. We presume, however, from what is disclosed in the record, that the false entry in question, appeared in the court below, to bear date of the 21st of April, 1848. At that time, the law of 20th of March, 1848, had not gone into effect.

There is not, however, a particle of evidence contained in the statement of facts, to show at what time the Alleged false entry appeared to have been made in the minute book of the court. There is, in the statement of facts, a certificate of B. F. Benton, the present clerk of the District Court of San Augustine county, stating that the alleged forged entry appeared to have been made in the minute-book, under date of the 21st of April, 1848. This certificate bears date on the 23d of May, 1859, long since the statement of facts was signed by the judge who presided below. This certificate, of course, is no part of the statement of facts, and cannot be noticed by this court as evidence. The petition in the case of Bird L. Hanks against the State, in which named case the alleged forged entry was made, bears a file mark of the 17th January, 1847, and purports to have been verified by affidavit, before the then district judge, on the same day. But the appellant was not indicted for forging the petition, and the date of the filing of the petition furnishes no evidence of the time when the alleged forged entry was made. There is, therefore, as was before stated, nothing before this court, to show when the alleged forged decree was entered on the récord book. From this it follows, that we cannot know what law was in force at the time the offence was committed. The judge below assumed, in his charge to the jury, that the law of 1848 had no application to the case. This, we think, was going too far. It was the province of the jury to ascertain, if it could be ascertained from the testimony, at what time the offence charged in the indictment was committed, and the punishment, of course, would be in accordance with the provisions of the law in force at that time, unless that punishment was ameliorated by some subsequenstatute having relation to the offence.

The judge instructed the jury, that the offence was punishable by fine and imprisonment, at the discretion of the jury. This conclusion was reached, doubtless, by treating the offence as a common law offence, and applying to it the provisions of the Act of the 9th of February, 1854, which was supplemental to the Act of the 20th of March, 1848. The Act of the 9th of February, 1854, provides, that all offences known to the common law, the punishment of which is not provided for in the statutes of this state, shall be punished by fine and imprisonment, at the discretion of the jury.

The 54th section of the law of 1836, as to this offence, was in force until the law of the 20th of March, 1848, took effect, which was on the 1st day of January, 1849. If this offence then, was committed before the 1st day of January, 1849, it was an offence against the 54th section of the law of 1836. The law of 1836 punished this crime as at common law. At common law, the crime of forgery, or the false making of any writing, with intent to defraud any person, was punishable by fine, imprisonment, and pillory. Particular kinds of forgery were punished in England, by the different statutes of .that realm. The offence of forging a court roll, with intent to affect title to real property, was punishable by the statute of 5 Eliz. ch. 14, by forfeiture to any person injured, of double the costs and damages, by pillory, by having the ears cut off, the nostrils slit and seared, and by forfeiture of all lands to the crown, and perpetual imprisonment. The statute of 56 Geo. 3d, ch. 138, affected the common law punishment for forgery, by taking away the punishment by pillory, and leaving fine and imprisonment as the only punishment.

We think, then, that the Act of the 9th February, 1854, making offences known to the common law, punishable by fine and imprisonment, at the discretion of the jury, may be considered as ameliorating the common law punishment for forgery.

The statute of 1854 provided, that where the punishment of offences committed before its passage was ameliorated by its provisions, and such offences were tried after it took effect, the judgment in such cases should be according-to the punishment prescribed by its provisions; in other words, the offender should have the benefit of the amelioration of punishment. If, then, this offence, of which we are now inquiring, was committed before the 1st of January, 1849, it was an offence against the 54th section of the law of 1836, and by the provision of that section, was punishable as at common law, that is to say, by fine, imprisonment and pillory; but the cause being tried, after the lawr of the 9th of February, 1854, went into effect, it would be punished under the last named law, by fine and imprisonment, at the discretion of the jury, because the law of 1854 mitigated or ameliorated the common law punishment. But if this offence was committed after the 1st day of January, 1849, it would be punishable by confinement to labor in the penitentiary, by the provisions of the 33d section of the law of the 20th March, 1848.

By this it will be seen, that it was important to ascertain when this offence was committed, in order to prescribe the proper punishment for it; and because the judge below assumed that the law of 1848 had no application to the case, instead of leaving it to the jury to determine at what time the offence was committed, and by their verdict to ascertain whether or not the law of 1848 was applicable to the case, there was error for which the judgment below must be reversed, and the cause remanded.

But this record presents another question, which we feel it to be our duty to decide, and which has given us no inconsiderable embarrassment. That question is, whether or not, any law of limitation of this state, is applicable to this case ? The only law of limitation, in relation to crimes, that was in force in the republic of Texas, and in the state of Texas, prior to the 1st of May, 1854, when the Act of the 9th of February of that year went into effect, was the law of the 21st of December, 1836. The 45th section of that law provided that, “No person shall be prosecuted, tried or punished for any offence, (murder, arson, forgery, counterfeiting and larceny excepted,) unless the indictment, presentment, or information for the same be found or exhibited within one year next after the offence shall be done or committed.” That law, it is obvious, had no application to this case, for it prescribed no limitation for the prosecution of the offence in question. The Act of February 9th, 1854, provided, that misdemeanors shall be prosecuted within two years, and not after; certain enumerated felonies within five years, and not after; and certain other felonies within ten years, and not after. This law went into effect on the 1st day of May, 1854.

The offence in question is charged in the indictment to have been committed on the 5th day of May, 1854. The indictment was filed in court on the 12th day of October, 1855. On the trial of this cause, in the court below, the defendant’s counsel asked the court to instruct the jury, that if they believed, from the evidence, that the offence was committed more than two years before the finding of the indictment, the prosecution was barred by limitation. The court was also asked to instruct the jury that if they believed, from the evidence, that the offence was committed more than five years before the finding of the indictment, the prosecution was barred. The judge below refused both these instructions, being of opinion that the limitations prescribed by the Act of the 9th of February, 1854, had no application to this case, inasmuch as two years had not elapsed from the time that act went into effect, before the time of the finding of the indictment. As the time when this offence was actually committed, may be ascertained upon another trial, to the satisfaction of the jury, it becomes necessary for us to decide, whether the statute of 9th February, 1854, can have a retrospective operation, so that the limitations prescribed by it, can operate as a bar to the prosecution of offences committed before it went into effect, and prosecuted in less than two years after it went into effect. After as diligent search, as the amount of business before us allows us to make, we have been able to find no authority for applying to a criminal statute, any other rule than the ordinary one applied to civil statutes; that all laws must be prospective in their operation, and will not be permitted to have a retrospective operation, unless it is the clearly expressed intention of the legislature which enacts them, that they shall have such operation.

The rule, that civil statutes must be construed to operate prospectively and not retrospectively, is so well established, that we need not quote the numerous cases that 'have been decided in England and in this country, in which this principle has been recognised. In his opinion, in the case of Dash v. Van Kleek, 7 Johns. 499, (I quote the page on which the opinion commences,) Chancellor Kent said, “ It is a principle in the English common law, as ancient as the law itself, that a statute, even of its omnipotent parliament, is not to have a retrospective effect.”

I find this principle in relation to the construction of statutes, everywhere recognised by the law-writers, and in the adjudications of the courts; and I can nowhere find that the rule is different in relation to criminal statutes, from what it is in relation to statutes affecting only civil rights. There is a single sentence in Wharton’s American Criminal Law, in relation to a criminal statute of the state of Pennsylvania, which says that it is retrospective, and. a case is cited; but we have not been able to see that case, so as to determine in what sense the statute is held to be retrospective.

The reason given for the general rule that statutes shall not be permitted to have a retrospective operation, is that vested rights ought not to be affected. It may be contended, and with force too, that there is less reason why the legislature should not interfere with the prosecution of offenders against the law, than there is that laws should not be passed, affecting or taking away vested rights of Citizens. But it may be doubted, whether the argument is sufficiently weighty to authorize a court to declare that the legislature has passed an act of grace, cutting off prosecutions against offenders, unless that intent of the legislative mind is expressed in the clearest and most explicit terms. Previous to the Act of the 9th February, 1854, there were many offences, the prosecution of which was not affected by any law of limitation. Undoubtedly, the legislature might have declared that the Act of February 9th, 1854, should have a retrospective operation, and that no offence previously committed should be prosecuted, except within a certain time after the commission of such offence. But if the same rule of construction applies to criminal and to civil statutes, we are to take it for granted that in passing the Act of 9th February, 1854, the legislature acted with respect to the general rule that statutes should have a prospective, and not a retrospective operation; and this rule should be applied in the construction of this statute, unless it clearly appears, that it was intended to look backwards, and to throw the mantle of oblivion over past offences, by not permitting prosecutions after the lapse of a certain time after the commission of the offence. We do not think that such an intention can be clearly inferred from the language of the act. On the contrary, we think that one of its sections shows a different intent. The 81st section of the act provides that “no offence committed, and no penalty or forfeiture incurred, previous to the time this act shall take effect, shall be affected thereby; except that when any punishment, forfeiture or penalty shall have been mitigated by the provisions of this act, such provision shall apply to and control any judgment to be pronounced upon the offender.”

We cannot say, that it is clear from this section, that the legislature meant any thing more than to declare that the punishment of offences, committed previous to the time the act should go into effect, should not be increased, or held to be entirely abolished. The object of the section was, probably, to declare that it was not the intention to abolish offences, or to increase their punishment; but that where the punishment, of what was before an offence, was mitigated, the offender should suffer the punishment prescribed by the act in question. It may be, that the subject of the limitation of prosecutions for former offences, was not in the mind of the legislature, when this section was under consideration. But it seems to us, that it is safer to give this section such a construction as will restrict the operation of the section, which prescribes the limitations to a time subsequent to the passage of the act, than to hold, in the absence of clear authority that it is proper to do so, that the statute may have a widely retrospective operation, and interpose a shield between the State and numerous offenders against the laws.

We think, then, that the judge below did not err, when he held, that the statute of 1854 could not operate as a bar to a prosecution, commenced within two years from the time that statute went into operation, there being no previous limitation to the prosecution of the offence in question. We think the limitations, prescribed in the statute, would begin to run after the statute went into effect, and that prosecutions for offences, eyen if previously committed, would be barred in two, five, and ten years, respectively, after the statute went into effect. We have come to this conclusion, not without hesitation, and our views are here expressed, in order that this question may receive the attention of counsel. The case must be reversed and remanded, for the reasons given in a former part of the opinion; and if the case comes back to this court, and upon more mature deliberation, and further investigation, we are brought to the conclusion, that the opinions here expressed are erroneous, we will be ready to renounce them, and put ourselves right upon so important a question.

In arriving at these conclusions, we have been not a little influenced by the fact, that the courts of this state refused to give to the statue of limitations of 1841, a retrospective operation in any case, and that, when there was a strong feeling in the country that such a construction would be beneficial to the interests of the state, or to many of her citzens. It is to be borne in mind, too, that a retrospective operation, to a certain extent, might have been given to our statute of limitations of 1841, upon clear authority. It is well settled, that the legislature may change the period of limitation, and diminish the time allowed within which to bring suits, because statutes of limitation are held to affect the remedy, and not to take away the right. It is not competent for the legislature to take away all remedy, but they may shorten the period within which to bring suits, so that a reasonable time be left; and what is a reasonable time, is a question for the courts. The courts of this state, refused to apply this rule to the construction of our statute of 1841. If suit had been brought two years after that statute went into effect, upon a promissory note, only three years past due at the time the statute took effect, the courts might have held such a claim to be barred by the statute, because the holder of such claim had one year after the statute went into effect, within which to bring his suit, before four years had elapsed from the time his cause of action accrued. The courts might have said, and found good authority for saying, that such a claim was barred. But they refused to give the statute that construction, and their refusal was not upon the ground, that to do so, would have been to cut off vested rights; for courts of the highest authority have held, that such a construction of statutes of limitation, did not cut off vested rights; their refusal was upon the principle, that statutes ought to operate prospectively, and not retrospectively, for other reasons besides those growing out of the impolicy and injustice, of an interference with vested rights.

The cases of Gautier v. Franklin, 1 Texas, Rep. 782; and De Cordova v. The City of Galveston, 4 Id. 470 ; instead of being authorities in favor of the proposition, that a statute of limitation ought to operate retrospectively, are authorities the other way. In both those cases, the statute of 5th February, 1841, was held to have no retroactive effect upon contracts, but only began to affect them from and after its passage; to use a homely expression, the operation of the statute was held to be forwards, and not backwards. And it is not unworthy of remark, that the statute of 1841, provided for the institution of suits, for the collection of money, due for fifteen years and upwards; which; when we consider the condition of this country, at the time that statute was enacted, will be regarded as a very strong evidence of legislative disinclination, to give even a statute of limitations a backward sweep. The judgment of the court below is reversed, and the cause remanded.