Hughes v. State , 67 Tex. Crim. 333 ( 1912 )

On December 1, 1910, appellant was prosecuted under the Act approved August 19, 1910, for refusing, on November 24, 1910, to let the sheriff of Montague County examine the express records, pertaining to the shipment of intoxicating liquors, of the Adams Express Company at the town of Sunset in said county, he being agent of said express company at that time and place, and prohibition being in force in said county at the time.

Said Act of the Legislature was passed at the third called session of the Thirty-First Legislature which convened on July 19, and adjourned on August 17, 1910. The Act became effective November 15, 1910.

The evidence is very brief and is without contradiction. It shows that on November 24, 1910, W.G. Bralley, the sheriff and W.W. Alcorn, the county attorney of Montague County, together, went to the office of said express company in said town at 3 o'clock p.m. during office hours of said express company at that time and place. The appellant was therein in charge of the said books and records of said express company at that time. The sheriff then requested appellant to show him the books and records of the express company showing the shipment of intoxicating liquors into Sunset. The appellant refused to let him see them because he had instructions from the express company to let no one examine the books unless they had an order from the court to do so and appellant stated that he would have to do him just like he had done all others. The sheriff then took the appellant's name, the name of the express company and he and the county attorney left. The appellant was the agent of the express company at said time and place and had the books of the company at that point in his possession. The appellant himself substantially testified to all of the above facts. He further testified he did not know the law had been changed from what it was prior to November 14, 1910; that after the officers left his office, he called an agent of the Rock Island railroad who told him that he thought the officers had the right to examine his books which they had demanded to see. He thereupon, the next day, wrote to the county attorney that he had since been advised that the sheriff had the right to examine his books and that if he desired he could then examine them. That he did not intend to violate the law. He also stated that at that time he had a pamphlet from his express company instructing him about the new law, telling him that his books were subject to inspection by the officers at all reasonable hours, but he claimed that at that time he had not seen the orders. That the auditor of the company, shortly before then, had taken his file or binder out of his office and placed the instructions from his company therein and then returned the file or binder to him, but that he had not actually seen and read it before the officers were there and left. He also admitted that in December thereafter in a conversation with the sheriff he had told him that at the time he demanded the inspection of his books he had a copy of said law in question pasted in the back of one of his books or binders; that neither the sheriff nor county attorney after November 24, had requested him to be permitted to inspect his books. They testified that after appellant refused to let them see his books they secured the information they wanted from some other source.

No complaint by motion, bill, or otherwise was made in the lower court to quash the complaint or information. However, appellant now complains that the complaint and information are fatally defective in that they do not allege that the request to him to examine his books was made "at any reasonable time during office hours." The complaint and information both are very full and explicit and fully allege all of the requisites in section 1 of said Act, except that they do not use the word "reasonable" in the allegations. The particular allegation covering the point is, "that on and about 3 o'clock in the afternoon of the said 24th day of November, 1910, the same being within the office hours of said express company at its said office in the town of Sunset, in Montague County, Texas, the said J.H. Hughes did then and there unlawfully refuse to permit W.G. Bralley to inspect the said books above mentioned, etc." Article 448, Code Criminal Procedure, expressly enacts that an indictment "shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment." Article 449 is that "When a statute creating or defining any offense uses special or particular terms, an indictment on it may use the general which in common language embraces the special term." Article 462 is, "Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words."

While it might have been better to have charged that the request to examine appellant's books was at a reasonable time during office hours, yet, when it was alleged that the time the request was made was at 3 o'clock p.m. during office hours and that the request was made of the defendant then and there, and the evidence shows that he refused, not because it was not reasonable time, but because his instructions were to refuse such request, the said information and complaint are sufficient.

Appellant asked four special charges. First, that as the evidence was insufficient to warrant a conviction, to find the appellant not guilty. The second that the law, under which he was prosecuted was an infringement of the Constitution and Bill of Rights and, therefore, void and to acquit the appellant. The third that if appellant had reasonable ground to believe he had a right to decline to permit the sheriff to inspect his books to acquit him. And the fourth that it was not the policy of the law to punish a person when the circumstances surrounding a transaction show it was not his intention to violate the law and, therefore, if they believed he had no intention to violate the law in this case and had reasonable grounds to believe his acts were not in violation of the law, or if they had a reasonable doubt of it, to acquit him. Neither one of these charges should have been given. Besides, no bill of exceptions was taken to the refusal of the court to give either of them. The only mention of them in the motion for new trial is, the court erred in refusing to give defendant's special charge No. 1 by him and then No. 2, and then No. 3 and then No. 4. This was entirely insufficient even in a felony case. Ryan v. State and Byrd v. State, recently decided but not yet reported.

In misdemeanor cases, ever since the establishment of this court, and even before, it was so held by the Supreme Court, as shown by Goode v. State, 2 Texas Crim. App., 522: that "If he (appellant) is not satisfied with the charge of the court, he should except to the charge and ask such additional instructions as he may desire and when his instructions are refused should also save a bill of exceptions to their refusal," citing several cases. Again, in Campbell v. State, 3 Texas Crim. App., 34, this court said: "The rule is well settled that in misdemeanors this court will not revise the action of the lower court, unless it is excepted to by the defendant at the time of the trial; and in such cases if he is not satisfied with the charge of the court he should except to the charge and ask such additional instructions as he may desire; and when his instructions are refused should also save a bill of exceptions to their refusal." See also Hobbs v. State, 7 Texas Crim. App., 118; Downey v. State,33 Tex. Crim. 380; Cole v. State, 28 Texas Crim. App., 536; Loyd v. State, 19 Texas Crim. App., 322, and many other cases to the same effect by this court.

Appellant has some bills of exceptions complaining of the action of the court in limiting the argument on each side to thirty minutes. He shows that the case went to trial at 1:30 p.m. on March 6, 1911; that the testimony was closed by 4:30 p.m. Appellant took up all of his thirty minutes in arguing the law to the court. We understand his contention in the lower court was that the Act under which appellant was prosecuted was unconstitutional. It is not made very clear why he took up his thirty minutes in argument to the court on the law of the case. The bills do show, however, that when his thirty minutes had been taken up by him the court declined to hear him further on the law, he contending for more time and the court declining to give it to him for that purpose. The court did, however, offer to give him additional time to argue to the jury but as he was trying to get the court to give peremptory instructions to the jury to acquit, he did not desire to argue to them, but expressly waived his right thereto. Another bill shows that after he had concluded his argument, the court permitted the county attorney to again address the jury in his closing argument, or rather his bill shows that he excepted to the county attorney so doing and the court overruled his objections. His bill does not state whether the county attorney then argued the case before the jury or not.

Article 704, Code Criminal Procedure, provides that when a criminal case is to be argued, the order of argument may be regulated by the presiding judge but in all cases State's counsel shall have the right to make the concluding address to the jury. This court has always held that this matter was in the sound discretion of the trial court and that unless injury is shown to the appellant this court will not revise the discretion of the lower court. No injury is shown to the appellant by the action of the court in these respects in this case.

Article 14, Penal Code, is: "After a law has taken effect no person shall be excused for its violation upon the ground that he was ignorant of its provisions." The fact that appellant was ignorant of the law under which he was prosecuted at the time he violated it is, therefore, no defense whatever and as the act under which he was prosecuted does not make his intent to violate it a necessary ingredient he would be guilty if he violated it, whether he intended to do so or not. The appellant himself testified that he did not intend to violate the law. The only possible advantage this would be to the appellant, if it were admissible at all, would be that the jury would give him a lower penalty. In this case the jury inflicted the lowest penalty under the law. So that he has no cause of complaint as to these matters.

Appellant complains by his second bill of exceptions, to the effect that after all the evidence was introduced the court asked counsel for both sides to excuse him and he would retire from the courtroom, go down into his office and prepare a charge. This was agreed to by both of them and it was further agreed that in the event he was needed they would send for him; that soon after he had thus retired they did need him and sent for him. He at once returned to the courtroom. The matter then between the attorneys was passed upon by him and he again started to leave the room. Appellant's counsel requested him not to do so and stated that he desired to change his former agreement and requested the court to then remain in the courtroom. The court replied: "You have already agreed to it and I am going to hold you to it." Appellant's attorney again requested him to remain which he declined to do and went down in the courthouse to his office to continue the preparation of his charge to the jury. That at one time "when the court was absent and State's counsel was arguing to the jury, in his closing argument he stated the defendant had admitted on the stand that he told Mr. Bralley last December that at the time of the alleged offense he had the law pasted in the back of a book or ledger in his office. Whereupon the defendant's counsel remonstrated with him, that he was outside of the record and asked him not to argue outside the record and the State's attorney insisted that he was right and not outside of the record and continued his argument. That this took place at a time when the court was out of the courtroom and after the defendant's counsel had insisted upon his staying in the room and objected to his going out, to all of which said proceedings the defendant then and there in open court excepted and tenders this his second bill of exceptions and asks that the same be approved and ordered filed as a part of the record herein." This bill was approved by the court. It will be seen by this bill that the only thing that occurred while the court was out of the courtroom preparing his charge was as to whether or not the State's attorney's argument was based upon the testimony of the defendant. The bill does not show whether the appellant had so testified or not. It is, therefore, defective to that extent. If we could look to the statement of facts it would be seen that the State's attorney was fully correct, not out of the record and that the appellant had testified as he argued at the time. So that the bill does not show that the appellant was in any way injured. Besides this, the statement of facts, without contradiction, and by the appellant's own testimony was that he was guilty beyond the shadow of a doubt and he could not have been injured by the court's temporary absence as shown. The jury gave him the lowest penalty under the law.

The appellant cites us to Bateson v. State, 46 Tex. Crim. 34; Evans v. State, 46 Tex.Crim. Rep.; Goodman v. State, 47 Tex.Crim. Rep.; Carney v. State, 47 Tex. Crim. 566; Anderson v. State, 50 Tex.Crim. Rep.; Williams v. State, 51 Tex.Crim. Rep. and French v. State,55 Tex. Crim. 538, 117 S.W. Rep., 848. In the last case cited, the court expressly did not pass upon the question. The Bateson case, supra, is the leading case on the subject, holding in that particular case because of the facts thereof, it was reversible error for the court to be absent under the circumstances therein shown. This court in the recent case of White v. State,61 Tex. Crim. 498, 135 S.W. Rep., 563, in discussing this question and the said Bateson case, said:

"It is also insisted that it was reversible error for the judge of the court, during the argument of the case by the attorneys for appellant, to absent himself from the courtroom, and this without in any way showing that anything occurred during his absence to the detriment of the appellant. We are cited to the case of Bateson v. State, 46 Tex.Crim. Rep., 80 S.W. Rep., 88. In that case it was clearly shown that many things occurred during the absence of the court from the room that were objectionable, and that, if the court had been present, exception would have been made thereto at the time, but that they were prevented from making such objection, because of the absence of the judge, and to have gone and hunted him up would have unduly interrupted the case, and that of itself, and the calling attention thereof to the jury, would have been detrimental to the appellant. What was said with reference to the absence of the judge during the trial in that case must be construed in connection with what was shown to have therein transpired. We do not understand that in this case the temporary and short absence of the judge from the courtroom, when he is in easy access in an adjoining room, would, without any prejudice or injury to the appellant, authorize or justify a reversal on that account alone. The judge should, of course, remain in the courtroom, or in such proximity and view of the jury and parties engaged in the trial that he can at all times be approached, and control the proceedings, and we can not understand why a judge should absent himself from the courtroom and permit the trial to continue. If necessity compels his retirement for any purpose, he should suspend the proceedings until his return. What we say on this point is that, as no injury whatever was shown to the appellant by the judge absenting himself at this time, a reversal of this case would not be authorized on that account alone. Hence there was no error in refusing to grant a new trial on that ground," which we understand to be the correct rule, even in felony cases. See also Scott v. State, 47 Tex.Crim. Rep.; and Lewis v. State, 15 Texas Crim. App., 647. The Bateson case expressly recognizes the difference on this doctrine between a misdemeanor and a felony case and cites 17 A. E. Ency., p. 720 on felony cases. On the same page of the same work as to misdemeanors, it is said: "In order for such absence to become reversible error it must appear, not only that objection was made to the judge's failure to suspend the trial (during his absence) but that his absence resulted in some harm to the losing party." To the same effect is 12 Cyc., 522, citing in note 7, Rowe v. People, 26 Colo. 542; State v. Smith, 49 Conn. 376; Pritchett v. State, 92 Ga. 65; Schintz v. People, 178 Ill. 320; Murphy v. People, 19 Ill. App. 125; State v. Porter, 105 Ia., 677; Ermlick v. State, 28 So. 847; Turbeville v. State, 56 Miss. 793; Quidas v. State, 78 Miss. 622; Rutter v. Ter., 11 Okla. 454.

In our opinion, under the circumstances and facts of this case and the way the matter is presented to us, no reversible error is shown because of the absence of the judge in this case.

We would not have it understood by implication even that we approve the absence of the judge from the presence of the jury, counsel and witnesses at any time pending the trial of a case. On the contrary, if error were shown prejudicial to the appellant by the absence of the judge, we would not hesitate to reverse the case. It is the duty of the court to be present at all times while the case is being tried. If it becomes necessary for him to be, even temporarily absent, he should stop the proceedings and prevent anything from being done until he returns, takes the bench and charge of the case.

The court did not err in excluding in evidence to the jury the said letter written by appellant to the county attorney the next day after the offense was committed. Besides, he testified, without objection, the substantial contents of the letter. Neither did the court err in sustaining the county attorney's motion or objection to this testimony by the appellant: "If either of them had told me they had a right under the law to inspect the books I would have permitted them to have examined the books." All of these matters, if admissible at all, could have had no proper effect on the trial. Appellant was given the lowest penalty. There are no other matters so presented as to require any further discussion of the case.

There being no reversible error shown in this case, the judgment will be affirmed.

Affirmed.