Roe v. State

White, Presiding Judge.

Appellant was indicted for the murder of his wife by poison. There were two changes of venue in the case—the first at defendant’s instance and based upon both the grounds mentioned in the statute. (Code Criminal Procedure, art. 578.) The second was at the suggestion of the de« fendant, but upon the court’s own motion, on the ground of undue excitement of the public mind and attempted mob violence in Madison county (to which the venue had first been changed), rendering it probable that a trial alike fair and impartial to the accused and the State could not be had in said county. On October 31,1887, the cause was brought to trial in the district court of Grimes county to which the venue had thus finally been changed, and the result of the trial was defendant’s convictionvof murder of the first degree and his punishment assessed at death.

The record is voluminous, containing over a hundred pages of closely written matter, and it shows that the case was earnestly and hotly contested by the able and zealous counsel engaged on both sides, and yet there is not a single bill of exception reserved by the defendant to any ruling of the court; and no exception was saved to the charge of the court, and no special instruction requested for defendant. The motion for a new trial contained eight separate grounds of supposed error. It was overruled, and the learned trial judge has given in a writing embodied in the transcript his reasons seriatim for the several rulings complained of.

These supposed errors are objections relating chiefly to certain portions of the charge of the court. As stated above, the charge of the court was not excepted to. In such a state of case, in order to avail of error in the charge, on a motion for a new trial, it must appear that “the court has misdirected the jury as to the law, or has committed any other material error calculated to injure the rights of the defendant.” (Code Criminal Procedure, art. 777, sub-division 2.) A charge clearly erroneous, though objected to for the first time on appeal in this court, will constitute cause for a reversal if it relates to a material matter, and was calculated to mislead the jury to the defendant’s injury. (Bishov. The State, 43 Texas, 390.) The true rule, as now recognized and settled by this court, is that, “if there was a material misdirection of law applicable to the case, or a failure to give in charge to the jury the law which was required by the evidence in the case, and such error or omission was, under all the circumstances of the case, calculated to prejudice the rights of the defendant, this court should for either cause reverse the judgment.” (Elam v. The State, 16 Texas Ct. App., 34; Lewis v. The State, 18 Texas Ct. App., 401; Hart v. The State, 21 Texas Ct. App., 163; Leache v. The State, 22 Texas, Ct. App., 280; Smith v. The State, Id., 316; Jackson v. The State, Id., 442; Cook v. The State, Id., 511.)

Let us apply these tests to the particular portions of the charge complained of in this case. In the fifth paragraph the instruction is : “What counsel on either side may say in the course of argument, as to their personal belief in the guilt or innocence of the defendant, is not in any degree evidence, and as such will be entirely disregarded by you, and you will try the defendant wholly by the law as given you in this charge, and by the testimony admitted to go before you, and alloio nothing else to influence you in finding your verdict.” We have italicised the portion which is the subject matter-of complaint. It is insisted that to instruct the jury thus was equivalent to telling them that they should pay no regard whatsoever to the arguments made by counsel in behalf of the defendant, and contravened the tenth section of our Constitutional Bill of Bights, which guarantees to an accused in all criminal prosecutions “the right of being heard by himself or counsel or both.”

Mr. Cooley says : “ With us" it is a universal principle of constitutional law that the prisoner shall be allowed a defense by counsel.” (Cooley’s Const. Lim., 4 ed., p. 412.) “At nisi prius trials the right of being heard can not be denied the accused. In Wood v. The Commonwealth, 3 Leigh (Va.), 805, it was held that upon the trial of a question of fact in a criminal case the accused has the right to be heard by counsel before the jury, and the court has no right to prevent him from being heard, however simple, clear, unimpeachéd and conclusive the evidence in its opinion may be.” And in The People v. Keenan, 13 Cal., 581, the court say : “It is unquestionably a constitutional privilege of the accused to be fully heard by counsel.” (Tooke v. The State, 23 Texas Ct. App., 10.)

“It is said that every party to a trial, civil or criminal, has the legal as well as natural right to be heard in his own cause by himself or counsel, and no rule of practice can deprive him of this right if at the proper time and in the proper way he offers to exercise it. (Sedonsky v. McGee, 4 J. J. Marsh., Ky., 271.) Another court has said that a party to a civil action has a right to be heard, not only in the testimony of his witnesses, but also in the arguments of his counsel. It matters not how weak and inconclusive his testimony may be, if it is enough to present a disputed question of fact upon which he is entitled to the verdict of the jury, he has a right to present, in the arguments of his •counsel, his view of the case. This is no matter of discretion on the part of the court, but an absolute right of the party.” (Douglas v. Hill, 39 Kansas, 527.) ****** “In criminal cases, the right of accused persons to be defended by counsel is a right of a very high nature, which is guaranteed by the Constitution of the United States and by the Constitutions of most •of the States. Under these constitutional guaranties it is the unquestioned right of every person tried upon a charge of crime to be heard by the court and jury through the lips of counsel learned in the law upon the whole case.” (9 Crim. Law Mag., pages 612, 614.)

In a civil case this identical question came before the Supreme Court of Georgia, and because the views, language and conclusions of that court are, in our opinion, worthy of all approval, we reproduce what was said by Hisbet, Judge, on the subject. He says: “The court further, as we have seen, charged the jury that, in determining this question, they were not to look to the argument of counsel Upon this subject we can lay down no precise rule. In a very significant sense they must look to the argument of counsel. Parties have a right to be heard by counsel, and it is the privilege of counsel to address the jury on the facts. If the jury are to disregard the arguments of counsel altogether—if they are to shut their eyes to their illustrations, comments and reasonings—how unmeaning, indeed how absurd, is the appearance of counsel. It is a most valuable right to be represented by learned and eloquent counsel, not only before the court as to the law, but also before the jury as to the facts. It means something; it is a guarantee against the encroachments of power upon the personal rights of the citizen. It is, in this country, no mean privilege. So far as the facts in the case are concerned, the privilege is valuable just because the jury may look to the argument of counsel—may consider his reasoning before making up their verdict. I do not suppose that the judge, in this instance, intended to instruct the jury that they should not listen to and avail themselves of the aid of the argument of counsel in coming to a decision in this case; he meant that the argument of counsel should not be to them a basis of decision. He meant to say that the statements and inferences of counsel are not the criterion of their judgment, but that the evidence is. In this view of the charge, it is not at all objectionable. The true view of the position of counsel before the jury is that of aids or helps. ***** His business is to comment on the evidence—to sift, compare and collate the facts—to draw his-illustrations from the whole circle of the sciences—to reason with the accuracy and the power of the trained logician and enforce his cause with all the inspiration of genius and adorn it with all the attributes of eloquence. It is the business of the-jury to listen, to be informed, but not to obey. They sit the-sworn arbiters of the cause, bound by the most solemn sanctions, to do justice between the parties according to the evidence”' (Garrison v. Wilcoxon, 11 Georgia, 154.)

A very nice and most serious question would have been presented in the case we are considering had this portion of the charge been specially excepted to. This, however, was not done, and the question is, was it calculated, under the facts and circumstances of the case, to injure the rights of defendant. In view of the explanation made by the learned judge, we think not. He says: “As to denying the right to be heard by counsel, I allowed four counsel to speak for the defense—all that asked—and gave them unlimited time, the four aggregating seven hours.”

It is strenuously insisted that serious injustice was done the-defendant in that portion of the sixth paragraph of the charge-contained in the words: “The facts of any case may be established either by direct or circumstantial evidence, and in so far in this case as circumstantial evidence is relied on to convict,” etc. The contention is that the language “in so far in this case-as circumstantial evidence is relied on to convict” intimated to-the jury that, in the opinion of the court, there was direct evidence of defendant’s guilt, and that the jury were doubtless thereby misled and influenced prejudicially to defendant’s rights. This charge was not excepted to. "Viewing it in connection with the other portions of the charge and with the evidence, we can not say it was unwarrrated, misleading, or calculated to injure the rights of the accused, or a charge upon the weight of the evidence.

Again, the tenth paragraph of the charge is claimed to be unjust, unwarranted and prejudicial to defendant in that it told the jury that “the defense alleges in this case that if Jennie Roe was murdered by poison, as alleged, that the witnesses Ann Derry and Lewis Cotton stand to such crime in the relation of accomplices;” whereas, on the contrary, defendant’s counsel alleged nothing of the kind, but claimed that Ann Derry and Lewis Cotton were themselves the principals in the crime, and that the defendant had no hand in it. It is claimed that the charge directed the mind of the jury to the defendant as the principal. This portion of the charge was not excepted to. Under the facts of1 the case as developed by the evidence it was the bounden duty of the court, as was done in all the varied phases presented, to1 •charge the jury fully the law of accomplices, accessaries and' participes criminis. If not “alleged” by defendant, still the evidence required that the jury should consider the relationship Derry and Cotton to the murder,—both of whom defendant was endeavoring to implicate in the crime as principals,—and, if not: principals, then to determine their complicity, if any, and, they were participes, then the necessity for corroboration their testimony. Taking the whole of the charge, together with the evidence on this phase of the case, and we are unable to de-' clare that prejudicial or reversible error has been committed this particular. (Coleman v. The State, 44 Texas, 109.)

Objections urged to other portions of the charge are, in our1, opinion, without merit, and therefore will not be discussed, and( especially so in view of the fact, repeatedly stated, that no ex- • ceptions were reserved to the charge. Over and above the ques- ■ tions already discussed relative to it, in our opinion the charge was a full and explicit exposition of the law, and so presented i as carefully to guard and protect all the material rights of the1 defendant in connection with the evidence.

One or more complaints are made to evidence which was permitted to be introduced. There is no bill of exceptions saved to any evidence introduced on the trial, and the record fails to show even that any objection was made to the introduction of any of the evidence. “ The action of the court below in receiving alleged incompetent evidence is not reversible by this court in the absence of a bill of exceptions (in the statement of facts or separately), showing that such evidence was objected to when it was first offered.” (Conner v. The State, 17 Texas Ct. App., 1.)

A last ground of contention upon part of the appellant is that. the evidence does not sustain the verdict and judgment. On the: contrary, it is claimed that they are against the evidence. To this we can not agree. The evidence is amply sufficient if thei state’s witnesses are to be believed, as it seems they were, both: by the jury and the judge presiding at the trial. If they are to] be credited in their statements, then those statements and sur-, rounding circumstances establish a case against defendant enfeirely free of any reasonable doubt. In so far as we can see,, defendant’s trial was a fair and impartial one, and by a jury" presumably free from all chances of having been biased or prejudiced against him. He has been defended, by learned, skilful and distinguished counsel. We have listened to their able arguments and have maturely considered their able briefs in his behalf. We have examined the record most carefully in the light of the argument and briefs, and our deliberate conviction is that-no error has been shown of sufficient magnitude to justify us in setting aside the verdict and judgment which condemns this appellant to death. If guilty, no punishment is too severe for one who wilfully, deliberately, and with malice aforethought, could take the life of his own innocent and confiding wife, by means-of poison, and that, too, when actuated solely by the motive to-obtain the paltry sum for which her life was insured. If guilty, this appellant’s case is totally without the slightest extenuating; circumstance to palliate its enormity.

Opinion delivered February 20, 1888.

The judgment is in all things affirmed.

Affirmed.