Childers v. State , 30 Tex. Ct. App. 160 ( 1891 )

WARD, R. H., Special Judge.

This is a conviction of murder in the second degree, with punishment assessed at confinement in the penitentiary for the term of fifteen years.

A few days before tire homicide two men by the names of Peter and Walling pointed out to defendant the deceased, on the streets of San Antonio, as the man who had told them of many exploits of a kind to illustrate his dangerous and desperate character, and of such variety and extent as would tend to cause any person to whom the same were narrated to believe that an assault by deceased would be one calculated to create a reasonable apprehension in the mind of a person attacked by deceased of death or serious bodily harm. Upon the trial the defendant proposed to prove these facts, but the district attorney objected on the grounds of immateriality and irrelevancy. The court sustained the objection and refused to admit the testimony. The defendant excepted and reserved a bill of exceptions to this ruling of the court. The facts of this case render this proposed testimony of the greatest importance, and the reporter will insert them in full.

If defendant had reasonable grounds for believing and did believe Draper (deceased) a dangerous and violent man, he had the right to act on that belief whether Draper was such a man or not.

But can the accused establish the grounds for such belief in the manner proposed? He could prove such a character for the deceased by general reputation, the presumption being that the accused knew of the general reputation.

But suppose that in fact the defendant did not know of the general reputation of his adversary, certainly his conduct should not be judged in the light of the general reputation of his adversary, though ever so bad, for not knowing such general reputation his conduct or acts could not in any manner have been influenced or controlled by such reputation. Grissom v. The State, 8 Texas Ct. App., 386.

In Brumley v. The State, 21 Texas Court of Appeals, 240, it was said by this court: “It is a rule, not only statutory but almost of universal acceptation, that a party may act upon reasonable appearances of danger, and that whether danger is apparent or not is to be determined from the defendant’s standpoints” If the accused had reasonable grounds for believing, and did believe, that the deceased was a dangerous man, the source of his information or belief is altogether immaterial. The law does not permit testimony to be given of the dangerous character of a deceased upon the principle of justification, for.it is just as much a violation of law to unlawfully kill a man of dangerous or violent character as to kill a man whose character is that of peace. But such testimony is admissible for the purpose of judging the conduct of the accused from his standpoint and in the light of all the surrounding facts and circumstances attending the homicide and as the same appeared to him. In this way alone can you properly determine the motives that controlled and governed his act. If the accused was in fact influenced and controlled by his belief that the deceased was á dangerous or desperate man, what matters it to him whether that belief be occasioned by the general reputation of the deceased, which the accused is only presumed to know, and which in fact he may not know, or whether that belief was generated by the statements of the deceased himself, the question at last being, did that belief exist and was the conduct of the accused influenced by it? It was the province of the jury to pass upon these questions, and they certainly could not do so unless they were in possession of all the facts and circumstances known to the accused, and which he claimed influenced or controlled his conduct.

Hr. Bishop clearly states the rule of law applicable to this question, as follows: “Except in capital executions under judicial sentence no evil in a person, however extreme, will justify or palliate the taking of his life. Therefore proof of the character, conduct, or utterances of the deceased is not ordinarily admissible in trials for homicide. But as a help to the understanding of motives and purposes it may be to a limited extent in special circumstances now to be explained. Thus the defendant to excuse or mitigate his acts claims that they were in self-defense or passion. The particulars of the transaction being thus material and the law judging him by the facts and necessities as they appeared to him, whatever they truly were, he may give in evidence anything known to him of the character, prior conduct, threats, or other utterances of the person with whom he was contending, which, not as showing that the man was bad, but that in the special instance and circumstances he was dangerous, might reasonably have place among the considerations guiding his actions.” 2 Bish. Crim. Proc., secs. 609, 610. The testimony of the witnesses Peter and Walling was admissible, and the court erred in excluding it.

It appears from defendant’s bill of exceptions that the State introduced and read in evidence over objection and exception of appellant the testimony of one Ellis given before Judge King on hearing of a writ of habeas corpus, and reduced to writing and signed by Ellis. The appellant objected to this testimony on the ground among others that the same was hearsay, and also objected that a proper predicate had not been laid. Whether a proper predicate had been laid is not a question deemed necessary to be determined here under the view we take of the case made by the bill of exceptions. The testimony admitted was of a very important character and very damaging to appellant, and the question is whether it was, in the form in which it was offered, such as could be legally admitted at all, or in other words, is a habeas corpus proceeding an “examining trial” and the court in which it occurs an “examining court” within the meaning of article 774, Code of Criminal Procedure? It is unnecessary to discuss what the rule is upon this subject at common law in the state of the record. Johnson v. The State, 27 Texas, 758. See also article 25, Code of Criminal Procedure. Therefore the material inquiry is, have we a statute that authorizes the admission of this evidence? It is contended that article 774, Code of Criminal Procedure, authorizes the admission of such testimony, on proof of the proper predicate being laid, as provided for in articles 772, 773, Code of Criminal Procedure.

Article 774 reads as follows: “The deposition of a witness taken before an examining court or a jury of inquest and reduced to writing and certified according to law, in cases where the defendant was present when such testimony was taken and had the privilege afforded him of cross-examining the witness, may be read in evidence, as is provided in the two preceding articles for the reading in evidence of depositions.” In order for such testimony to be admissible under this article it is necessary that the same should have been taken before an examining court or a jury of inquest. The next step in the solution of this question is to determine what constitutes an examining court. This question is solved by the statute, for it expressly defines what constitutes an examining court. Article 63, Code of Criminal Procedure, reads as follows: “When a magistrate sits for the purpose of inquiring into a criminal accusation against any person, this is called an examining court.” Article 26 of the Penal Code reads as follows: “A criminal action as used in this code means the whole and any part of the procedure which the law provides for bringing offenders to justice; and the terms ‘prosecution,’ ‘ criminal .prosecution, ’ ‘accusation,’ and ‘criminal accusation’ are used in the same sense.” Our statutes do not define what a magistrate is, but very clearly state who are magistrates and what their duties are. A magistrate is “apublic civil officer, invested with some part of the legislative, executive, or judicial power given by the Constitution, etc. The President of the United States is the chief magistrate of the nation; the governors are the chief magistrates of their respective States. In a narrower sense the term only includes inferior judicial officers, such as justices of the peace, etc.” 13 Am. and Eng. Encyc. of Law, pp. 1198, 1199.

Article 42 of the Code of Criminal Procedure is as follows: “Either of the following officers is a magistrate within the meaning of this code: The judges of the Supreme Court, the judges of the Court of Appeals, the judges of the District Court, the county judge of the county, either of the county commissioners, the justices of the peace, the mayor or recorder of an incorporated city or town.”

Article 43 of the Code of Criminal Procedure is as follows: “It is the duty of every magistrate to preserve the peace within his jurisdiction by the use of all lawful means; to issue all process intended to aid in preventing-and suppressing crime; to cause the arrest of offenders by the use of lawful means in order that' they may be brought to punishment.”

In order for a court to be an examining court within the meaning of the statute under discussion, we think that a magistrate must preside as a magistrate for the purpose of inquiring into a criminal Accusation preferred against a person on trial, and this duty must be enjoined upon him as a magistrate by the law. That those judges who have the power to issue the writ of habeas corpus do not have this power because they are magistrates, but they possess this power because it is conferred upon them by the Constitution. Judges of the Supreme Court have the power to act as magistrates, to cause offenders to be arrested and bound OArer or discharged. They do not do this as judges of the Supreme Court, but as magistrates authorized to perform these acts. Yet notwithstanding they are magistrates in the performance of these acts, they can not issue the writ of habeas corpus. The judge of the District Court can entertain a complaint against a citizen, can have a trial upon it, can admit to bail, discharge, or commit to jail the offender, but in performing these duties "he acts not as judge of the District Court, but as a magistrate. A justice of the peace is ex officio a notary public, but when he is performing a judicial duty he acts as a justice of the peace and not as a notary public. Any magistrate, whether he be a judge of the Supreme Court or the mayor or recorder of an incorporated town or city, has the power to hold an examining court, but no magistrate as such has been given the power to issue the writ of habeas corpus. “A writ of habeas corpus is an order issued by a court or judge of competent jurisdiction, directed to any one having a person in his custody or under his restraint, commanding him to produce such person at a time and place named in the writ, and show why he is held in custody or under restraint.” Code Crim. Proc., art. 131. “The Court of Appeals or either of the judges, the District Courts or any judge thereof, the County Courts or any judge thereof, have power to issue the writ of habeas corpus, and it is their duty upon proper application to grant the writ under the rules herein prescribed.” Art. 135, Code Crim. Proc. In issuing the writ of habeas corpus the act is that of the court or of the judge of the court and not the act of a magistrate, and the trial upon the same is not an examining court held by a magistrate, but is a trial before a court or the judge of the court. The objects and purposes of an examining court and a habeas corpus proceeding are essentially different. In the former the object is to determine whether a person who is accused of an offense is guilty and whether he should be discharged or bailed. In the latter the object is to determine whether the citizen is unlawfully restrained of his liberty. In the former the proceedings are in an examining court before a magistrate; in the latter before a court or the judge of a court to whom in the particular matter jurisdiction is specifically given. These views are in accord with a previous decision of this court. In the case of Hart v. The State, 15 Texas Court of Appeals, 226, occurs this language: “After providing generally for the jurisdiction of justices, the Constitution declares that they may have ‘such other jurisdiction, criminal and civil, as may be provided by law under such regulations as may be prescribed by law.’ Const., art. 5, sec. 19. In prescribing their powers and jurisdictions article 1543, Revised Statutes, provides that ‘they shall also have and exercise jurisdiction over all other matters not hereinbefore enumerated that are or may be cognizable before a justice of the peace under any law of this State.’ With regard to the final trial of causes coming within his jurisdiction, whether civil or criminal, the statute evidently contemplates that the action and jurisdiction of the justice court shall be limited by and to his precinct unless otherwise expressly authorized by the law in certain exceptional cases. But he is furthermore a ‘magistrate,’ made so by the terms of the statute equally with the judges of the Supreme Court, Court of Appeals, district and county judges (Code Crim. Proc., art. 42), and when a magistrate sits for the purpose of inquiring into a criminal accusation against any person this is called an ‘examining court.’ Code Crim. Proc., art. 63. At such time he is a ‘magistrate’ and not a ‘justice of the peace,’ and his court an ‘examining’ and not a ‘Justice Court.’ A warrant of arrest may be issued by a magistrate (Code Crim. Proc., art. 232), and when issued by a judge of the Supreme Court, Court of Appeals, District or County Court, shall extend to every part of the State. Code Crim. Proc., art. 237. But when issued by any other magistrate it can not be executed in any other county except in certain instances mentioned. Code Crim. Proc., art. 238. It may, however, be issued to and executed anywhere in his county outside of as well as in his own precinct.

“When sitting as an ‘examining court’ the law nowhere limits the magistrate if he be a justice to his particular precinct; and not being-in this regard, there is no reason why it was not intended he should hold the court in any portion of the county most convenient for the purpose of the examination as to the commitment or discharge of the accused (Code Crim. Proc., chap. Ill), whether the place of the sitting be in the precinct of another justice competent and qualified to act or not.” From this decision it is manifest that a justice of the peace has a dual character. Those matters conferred upon him and to be exercised by him as a justice of the peace constituting one, and those conferred upon him to be exercised by him as a magistrate constituting the other. This is equally so of the judges of the Supreme, District, and County Courts. The judges of the Supreme Court are magistrates, but can not issue the writ of habeas corpus. The judges of the District Courts are magistrates and can issue the writ of habeas corpus. Is this by virtue of any power given to magistrates? Most certainly not. It is by virtue of the power given them as courts or judges thereof. Then in the exercise of this power it follows that the writ is issued by a court or the judge thereof and not by a magistrate, and the proceeding is not in an examining court and is not carried on before a magistrate. Article 774 contemplates that the testimony should be reduced to writing and certified according to law, etc. Article 267, Code of Criminal Procedure, which relates to an examining trial before a magistrate, requires the testimony to be reduced to writing, signed by the witness, and certified to by the magistrate taking the same. We can find no such provision relating to a habeas corpus trial before a court or judge, and this fact strengthens our view that article 774 was not intended to embrace the testimony taken before a judge on habeas corpus trial. Evans v. The State, 12 Texas Ct. App., 383.

We are of the opinion that the testimony of the witness Ellis taken before the judge on habeas corpus trial was not admissible in evidence, and the court erred in admitting the same.

We have carefully considered all the evidence contained in the record, but in view of the disposition made of this case we do not deem it necessary to say whether in our opinion the testimony is sufficient or not to support a conviction for murder in the second degree.

For the errors discussed in this opinion the judgment is reversed and the cause remanded..

Reversed and remanded.