Easterwood v. State , 34 Tex. Crim. 400 ( 1895 )

Appellant was allotted twenty years in the penitentiary, under a conviction of murder in the second degree. His application for a continuance was on account of the absence of W.H. Kendrick and wife, by whom he expected to prove that he was at home, about a quarter of a mile distant from the scene of the shooting, at the time deceased was shot. Quite a number of witnesses testified to this alibi, and several were present, under the rule, for the purpose of testifying to the same fact, but were not introduced by him. Mrs. Kendrick appeared during the trial, and testified. Those who testified to the alibi also swore the witnesses who were under rule were with them, and the evidence for defendant shows they were cognizant of the facts upon which the alibi was predicated, if such facts were true, and yet they were not placed upon the stand by appellant to testify. Taking this record in its entirety, and the cogency of the testimony proving guilt, it is not in the least probable that the jury would have be lieved Kendrick had he been present, and testified as stated in the application. Nor will he be heard to complain in this matter, for it was in his power, and he failed to place on the stand those witnesses who were under rule, and who were willing and anxious to testify in his behalf in regard to his alibi. These witnesses were his near relatives, and warm, close friends, and were brought by him for the purpose of proving an alibi. It was his duty to have used all of the available testimony at his command before asking a new trial because of the absence of Kendrick. Willson's Crim. Stats., sec. 2186, for collated authorities.

It was not error to overrule appellant's challenge for cause to the juror Branch, because he had challenged the juror peremptorily on a former trial of this cause. No prejudice is shown, or sought to be shown, to have existed for this or for any other reason in the mind of the juror as against appellant. The mere fact that he had on a former trial challenged the juror peremptorily constituted no ground or cause for challenge on this trial. Wilson v. The State, 3 Texas Crim. App., 64.

Excerpts from the testimony of the deceased taken on the examining trial were excepted to for various reasons, pertaining in the main to matters occurring between deceased on the one side, and appellant, his codefendant, Hamblin, and Bill Barbee on the other, just prior to the homicide, and grew out of the fact and related to the matter of deceased being a witness against Bill Barbee for the theft of Dulaney's cattle. Barbee was a brother-in-law of appellant, and a warm personal friend of Hamblin, and they were taking great interest in his case. This evidence was admitted on the ground that it showed motives and malice as showing the reason for the killing by the accused parties. Any fact in this connection, which showed or tended to show motives, or to intensify the motive and malice, and which proved the intimate knowledge by deceased of the facts which would prove Barbee's guilt and knowledge on the part of the accused that the deceased knew and would testify to such facts, would be admissible; and the nearer such facts known to the deceased would connect Barbee with the theft of the cattle, the greater would be the motive, on the part of Barbee and his friends, for the murder of deceased. Under this record, this evidence was clearly admissible, although some of the details of the extrinsic crime were mentioned by deceased. This is true, because it would render more cogent against Barbee that deceased was a dangerous witness against him for said cattle theft. The theory of the State was, that Hamblin killed deceased because he was a witness against Barbee in the theft case, and that appellant was acting with him in the murder. Now, if deceased was informed of facts tending to show the guilt of Barbee, and intended to relate them to the court and jury upon the trial of Barbee, it was of the highest importance to Barbee and his friends to prevent him from so doing; and the more cogent his testimony, Barbee and his friends, Hamblin and appellant, being informed thereof, the greater and more powerful the motive for the killing.

A bill of exceptions discloses, that defendant proved by L.J. Easterwood that after John Baker, the deceased, gave in his evidence at the examining trial in this case, witness and one Boyett were sitting up with him one night, either the night he died or the night before; that said Baker, in answer to questions propounded by witness to him (no one being present except witness, Boyett, and said Baker), expressed doubts as to his being positive that defendant was one of the persons who assaulted him; whereupon counsel for the State asked witness if he was not present on a former occasion, and after said examining trial, when Mrs. James Baker, John Baker, Miss Lucy Easterwood, witness' cousin, were present, and Miss Lucy Easterwood said to John Baker, "You are not positive, are you, that Elzy was one of the parties who assaulted you?" and John Baker replied, "Yes, it was sure Elzy, and no one else;" that Miss Lucy Easterwood thereupon threw her hands over her face, and turned away, with the exclamation, "O, my God!" all of which witness denied having seen or heard. Thereupon, in rebuttal, the court permitted the State, over defendant's objection, to prove by Mrs. James Baker, that after said examining trial, on one occasion, she and John Baker, L.J. Easterwood, and Miss Lucy Easterwood were present, when the above indicated matters did occur, and as stated in the question put to said L.J. Easterwood, that he "was right near, and saw and heard all." Objections to this evidence were urged, "because the matters inquired about were not proper matters for impeachment, as no statement made by L.J. Easterwood was contradicted, and the matters inquired about were collateral and immaterial." "In the same connection, Mrs. James Baker testified, that she was almost constantly with deceased after he was wounded, and that he at all times said Elzy Easterwood was one of the parties who assaulted him, and at no time expressed any doubts about it." Defendant objected, because this was hearsay, and no part of any conversation or act of said Baker heard by defendant. The defense having attempted to impeach the testimony of deceased in this manner, namely, by showing contradictory statements, the State had the right to sustain deceased by proving he had always made the same statement as that sworn to by him. But it may be contended that the State could not impeach L.J. Easterwood in this manner, because he had not referred in his testimony to the transaction or conversation related by Mrs. Baker. This may be true, but on his cross-examination he stated: "I never at any time heard John Baker say he was positive that Elzy was one of the parties that hurt him. I saw him several times after he was shot." This evidence was injurious to the State, and, conceding the State had made the witness her witness respecting this matter, yet she was not thereby debarred the right to impeach him, as was done. It may also be contended, that the exclamation and conduct of Miss Easterwood was not evidence against appellant. This may be conceded to be true also, and, had appellant specially excepted to same, the court should and doubtless would have sustained the objection. This, however, was not done, the objections urged being general, and to the whole matter inquired about. Nor did he ask the court to exclude the exclamation of Miss Easterwood.

Subsequent to the return of the verdict against appellant, he discovered that one of the jurors who tried him had served a term in the penitentiary, under a conviction for theft. This was made a ground of the motion for a new trial. To this the State replied with a full pardon granted the juror by the Governor in 1886, and after he had served out the term of his sentence. It is urged that the Governor had no authority to grant the pardon after the juror had served his time, and that, if he did have such authority, an absolute pardon can not and does not restore such a person to citizenship, to the extent of authorizing him to sit upon juries. Our Code of Criminal Procedure provides, that "In testing the qualifications of a juror, he having been sworn as provided in article 619, he shall be asked the following questions by the court, or under its direction: (1) Are you a qualified voter in this county and State, under the Constitution and laws of this State? * * * If the person interrogated answers the foregoing questions in the affirmative, the court shall hold him to be a qualified juror, until the contrary be shown by further examination, or other proof." Code Crim. Proc., art. 631. Article 636 of the same procedure further provides, that "A challenge for cause is an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury. It may be made for any one of the following reasons: (1) That he is not a qualified voter in the State and county, under the Constitution and laws of the State. * * * (3) That he has been convicted of theft or any felony." Article 639 enacts, that "No juror shall be impaneled when it appears that he is subject to the third clause of challenge in article 636, although both parties may consent." Recurring to the Constitution, we find that it ordains that "the following classes of persons shall not be allowed to vote in this state, to wit: * * * (4) All persons convicted of any felony, subject to such exceptions as the Legislature may make." Const., art. 6 sec. 1. It further declares, that "laws shall be made to exclude from office, serving on juries, and from the right of suffrage, those who may have been or shall hereafter be convicted of bribery, perjury, forgery, or other high crimes." Const., art. 16, sec. 2. If the party offered as a juror has been convicted of a felony, he is debarred the privilege of suffrage, unless the Legislature may by law remove such disability from the conviction. This disability must remain as long as the conviction Stands, because it is a part of it. It is brought into existence by reason of the conviction, and remains until that conviction is removed. And, being so disqualified as a voter, the convict is therefore rendered incompetent as a juror. But, as said above, such disqualification attaches to the conviction, unless otherwise provided. That this may be done by the Legislature is expressly declared by the Constitution, and that body may relieve a convicted person from the disabilities otherwise attaching to such conviction under the terms of article 6, section 1, subdivision 4, already cited. Such we understand to be the meaning of this provision of the Constitution. In other words, this provision of the Constitution is not, and was not intended to be, a limitation upon the pardoning powers confided in the Governor. Nor is this view antagonistic to the provisons of section 2, article 16, of the Constitution, for it only requires suitable legislation excluding from the various privileges of citizenship persons who are convicted of the felony therein specified. The Constitution and legislative enactments referred to therefore only relate to the disabilities attaching to felony convictions, and have no reference whatever to the question of pardons. The pardoning power in this State can not be invoked or exercised until the conviction is an accomplished fact, for it is expressly declared, that "in all criminal cases, except treason and impeachment, he [the Governor] shall have power, after conviction, to grant reprieves, commutations of punishments, and pardons; and under such rules as the Legislature may prescribe, he shall have power to remit fines and forfeitures." Const., art. 4, sec. 11.

This idea of restricting the executive clemency to cases of conviction would seem to be in harmony with that merciful principle which underlies our whole political fabric pertaining to criminal jurisprudence, to wit, presumption of innocence and reasonable doubt of guilt until the conviction has been obtained. We see no conflict or antagonism between the provisions of the Constitution in regard to the pardoning power and those which relate to disabilities attaching to convictions for felony. The pardoning power is intended to relieve of the consequences of the conviction, and it is dormant until called upon to relieve the convicted party of the effects of such conviction. It would seem almost a work of supererogation now to discuss the effects of an absolute pardon, and it would appear almost strange, at this late day, that its effect could be thought to be otherwise than that of complete remission of all guilt that might attach to the conviction. This full effect could not be restricted, unless the organic law itself should so prescribe.

It may be well enough, perhaps, to refer to some of the cases in this connection. In Ex Parte Garland, the Supreme Court of the United States says: "A pardon reaches both the punishment prescribed for the offense and the guilt of the offender, and when the pardon is full it releases the punishment and blots out of existence the guilt, so that, in the eye of the law, the offender is as innocent as if he never had committed the offense. * * * If granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity." 4 Wall., 333, 380. In Klein's case, it was said, that "it blots out the offense, pardons and removes all its penal consequences." 13 Wall., 128, 147. Again, "in contemplation of law, it so far blots out the offense that afterwards it can not be imputed to him to prevent the assertion of his legal rights. It gives him a new credit and capacity, and rehabilitates him to that extent in his former position." Knote v. United States, 95 U.S. 149; Carlisle v. United States, 16 Wall., 147; United States v. Wilson, 7 Pet., 150; United States v. Padleford, 9 Wall., 531. This is true even where the disability is prescribed by a particular statute as a penalty for its violation. Hay v. The Justices, 24 Q. B. Div., 561. It was there said: "It is a purging of the offense, * * * and so far clears the party from the infamy and all other consequences of his crime, that he may not only have an action for a scandal in calling him traitor or felon after the time of the pardon, but he may also be a good witness." Such are the decisions in this State. Rivers v. The State, 10 Texas Crim. App., 177; Carr v. The State, 19 Texas Crim. App., 645. And this is true even though the offense has been fully expiated, for in that case a pardon may be granted. Rivers v. The State, 10 Texas Crim. App., 177; 6 Crim. Law Mag., 472, and note 2, for cited authorities. Disabilities arising out of and attaching to a conviction for felony in this State are removed by the absolute pardon. The provisions in the Constitution and the laws of this State, imposing disabilities because of conviction, are not and can not be limitations upon the authority of the Governor to pardon. It is beyond the power of the Legislature to so restrict the consequences of the pardon. His power is supreme, and beyond the reach of legislative limitations.

When a full pardon takes effect, all disabilities disappear, and the grantee stands as if he had never been convicted. A removal of the conviction necessarily removes the disabilities, because they are but consequences of the conviction. This would, therefore, restore the party to his right of suffrage, and his competency as a juror. The authorities are clear upon these questions, as we understand them.

Finding no reversible error in the record, the judgment is affirmed.

Affirmed.

Judges all present and concurring