Tyrone v. State

Before the adjournment of the last term of this court the judgment herein was affirmed. Motion for rehearing was filed and disposed of during the present term. I did not then believe, and in the light of further investigation am more fully persuaded the opinion is not correct, and that the judgment ought to have been reversed.

Appellant was allotted five years in the penitentiary under a conviction for manslaughter. As evidenced by the statute this is the maximum punishment. This is mentioned for the reason that if there were any circumstances on the trial which led erroneously to conviction or to enhanced punishment, conceding appellant's guilt, then the verdict was wrong and the judgment erroneous. This record discloses that it was the custom of the trial judge to deliver on each recurring Monday morning during his term of court a charge or lecture to the jury for that week, in which he instructed them, substantially, there should be no hung juries in the trial of causes; that one set of twelve jurymen ought to dispose of a case as easily and as readily as any other twelve jurors. That hung juries were detrimental to the State, were expensive and cost the State money. That causes should be tried without regard to the "standing" of the parties to the litigation, and the jurors should disregard such standing. That they should lay aside all their "contrariness"; and should agree to a verdict. Defendant was not present when this charge was given and had no opportunity then to enter his protest. Many exceptions, however, have been urged and were urged when this matter was called to his attention. This charge was not given on the trial of the case. Had it been, this judgment would have been promptly reversed. I believe even the majority of this court and the Assistant Attorney General would so concede. Two of the jurors thus charged sat upon the trial of the case and convicted appellant. It is a matter of judicial knowledge to this court that it is and has been the habit and custom of that trial judge to so charge the jury. Reed v. State, 74 Tex.Crim. Rep., 168 S.W. Rep., 541. The Reed case was tried in the same county by the same judge as was this case, but at a previous term of the court. The Assistant Attorney General recommended a decided approval of this charge by this court. A majority of this court adopted that request as evidenced by their opinion. Partisanship is commendable on the part of attorneys. An attorney's view usually is, that his side is right, but the court does not primarily so hold. The case must so present itself from careful revision. Such request, if indulged, should be of a character that the court, from every standpoint, could say the request should be endorsed as correct and as the law of that case. Zeal is commendable, but this belongs to attorneys, not the court. He may be commended for his success, but I can not agree with the court in adopting his zealous views.

The accused is accorded and entitled to a fair trial by an impartial jury. At least, the Constitution and our law so guarantee. This is time honored, it is the growth of our jurisprudence, and guaranteed by section 10 of the Bill of Rights. This means twelve impartial jurors in the District Court. Article 1, section 10, of the Bill of Rights. Also article 5, section 13, Bill of Rights. This remains inviolate. Constitution, article 1, sections 15 and 29. Each of the twelve jurors shall be fair. It does not mean a part of the jury of twelve, but it means all and each juror. The verdict must be from twelve unbiased jurors. It does not mean a fraction of the jury. The verdict is the independent vote and verdict of each juror. This is guaranteed by the Constitution, and it is provided by the Constitution and the statute that the accused can not be deprived of such trial. The verdict is not that of a majority of the jury; it must speak the truth as to the conscience and judgment of each juror. There is no warrant of law for the proposition that less than a full jury of twelve men can under any circumstances in a felony case render a verdict, or that the verdict shall be rendered by a majority of the jury. It is not the law that the majority shall control the minority or dictate their verdict. Nor am I aware as to which part of the jury — the majority or the minority — constitute the "contrary jurors," where the jury does not agree. The trial court, however, from his charge, seems to have thought it was the minority. This may be or it may not be, but it is not the province of the judge to decide that question. The law takes this from the court and places it exclusively in the hands of the jury. There is no rule of law that fixes infallibility in a majority of the jury. Each juror must decide for himself upon his judgment and conscience, and to test this the statute authorizes that the jury may bepolled to ascertain if the verdict is that of each juror unbiaslygiven. If not, the verdict is not to be received. The forcing of a majority verdict upon the minority for any reason is violative of every principle of law and is subversive of all ideas of a fair trial and overturns the constitutional and statutory guarantees. The jury could not be fair under such circumstances, nor could it be impartial. If the charge mentioned had been given on the trial of the case, no citizen of Texas, be he layman, attorney or court, would have sanctioned it. It subversively struck at the very basis of a fair trial by an impartial jury, and invaded the province of the jury. No appellate court would have sustained a conviction thus obtained.

Nor does our Constitution, statutes or jurisprudence proceed on the idea that the life, liberty or property of a citizen shall be taken because it may be costly to the State for the jury to disagree as to their verdict, or that a conviction should be upheld obtained for that reason. This idea is more than a criticism and reflection upon our people and their ordained government. The life, liberty and property of our citizenship are not held on or by such sordid considerations. Life, liberty and property are placed on higher lines and grander planes. We have not placed nor rested these great principles on financial consideration. Life, liberty and property are not the subject of cost bills. Innocence is not to be weighed by such methods or means, and it is to be hoped will never be. The Bill of Rights fixes it definitely and provides that no man's life, liberty or property shall be taken except by due process of law. It excludes the idea that either shall be taken to prevent cost or expense. Every criminal trial involves cost and expense, but this has not heretofore been urged as a reason for verdicts or convictions. If this is to be the law, or regarded as such, our lives, liberty and property will become the subject not only of financial consideration but to be decided to save expense accounts. I protest against such propositions either as law or policy. Law and not money is the legal criterion in the trial of cases.

Again the "standing or parties" in criminal cases has heretofore been considered of most material consideration. One of the basic principles of this and other right-minded governments is the "standing" and character of the citizenship. Such "standing" and character has at all times been considered of inestimable value in governmental and social relations. In criminal cases this has been the subject of express legislation. In murder cases, as in other cases, the standing and character of the citizen when tried for his life or liberty has been thought heretofore to be of the most material consideration. It is deemed unnecessary to collate the statutes and decisions manifesting this great truth and principle. The books teem with such jurisprudence and beyond dispute even by the most strenuous seeker for the punishment of the citizen. It aids and is in accord with the great underlying principles of innocence and its overruling presumption. This belongs only to the jury to be weighed by them. It is expressly so provided by statute. The court is debarred from passing on such facts. He instructs as to the law; he may not and can not invade the jury box. Sanctity against the judge guards the jury box and protects the citizenship against his expression of opinion on the evidence.

Character is but a synonym of the high "standing" of the womanhood and manhood of our country, and its citizenship for integrity. It is the product or intended so to be of our civilization, political and religious, and has been in our history and social life. Purity of life has been endorsed among all right thinking people in all times of history. On the plains and among the Judean hills Christ denounced the Pharisee and pronounced benedictions upon purity in life. To this end and for the establishment of character, the clergy, Protestant and Catholic, have preached the teachings of the Savior and beginning at Jerusalem have heralded the principles of the Sermon on the Mount to all nations for over 1900 years. The churches or denominations have established and supported colleges and universities so that character lofty and pure might form the basis of society, and from their viewpoint inculcate the great doctrines of Christianity. To the end that our people be taught high standards of life and character our secular school systems have been created, fostered, supported and cherished. Our system of public education, common schools, normal colleges, A. and M., and State University crystallizes the thought in which is involved and about which revolves the great central idea of upbuilding character in our youth and as the basis and hope of the future of our civilization. In that great system inheres the welfare, development and character building of the youth, future manhood and womanhood, and the higher destiny of our great commonwealth. The past and present furnish the greatest and most perplexing problems which have involved and do involve the destiny of our people and the great issues of the future. To meet that and build character of student bodies, those institutions are endowed and upheld as the central thought of our civilization and polity, and this whether the school system be sectarian or non-sectarian, religious or secular. Higher civilization based on nobility of character is in the last analysis the central thought of our advanced and advancing humanity, civilization and jurisprudence. It involves the higher destiny of our country and people.

The trial judge who delivered the derelict charge set out in this record but for the fact of his high character could not have entered the legal profession through which he is permitted to qualify for the distinguished judicial position he occupies and which enabled him to deliver that charge to the jury. That judge selected the jury commissioners by whom the jury he addressed was drawn because of their high "standing" as citizens. The jury he was addressing were chosen on the theory of their character and standing, probity and integrity and fitness to decide the great questions of life, liberty and property submitted to them. The very basic reason for their selection as jurors they were instructed to disregard in deciding upon the lives and liberty of their fellow man. Presumption of innocence is based on the natural as is the legal idea that the citizenship are not criminals, at least to the extent that the prosecution must prove beyond a reasonable doubt the accused guilty of a legal violation. Standing and character is the underlying thought of this fundamental principle of law and government. This charge of the trial judge strikes essentially at the very life of that great principle, and means, if carried out, its destruction.

Character is worth something in all phases and departments of life. It is a priceless asset not only to the individual but to society, civilization and humanity. It is on this principle that humanity moves, works, builds, and this from the mother's touch in infancy at the home fireside till the close of eventful life.

Under our supposedly advancing civilization towards higher planes, loftier thoughts and purer character I am persuaded we have not yet reached the point where character shall be ignored or be levelled with viciousness; or where the good and the noble are to be classed on equality with the impure, or the manhood and womanhood of "standing" and character with those who have neither.

Our Constitution, statutes, jurisprudence, history, polity, civilization, institutions, State and church, in all things and from every standpoint have been based upon the "standing" and character of the womanhood and manhood of our age and country, past and present, and upon these we are building the expectancies of the future of humanity. These all stand as enlarging monuments of protest to the submarine sentiment expressed in the unfortunate charge.

To this end the suspended sentence law was enacted. That law left that matter exclusively to the decision of the jury. The court is powerless to interfere with it. The very basis of the suspended sentence law is the standing and character of the accused, and yet the court said to the jury they must not consider his standing, in face of the fact that appellant filed his plea for suspended sentence in this very case, but the jury failed to recommend it. What effect did the judge's speech or charge have upon this feature of the case? That is one of the questions. Can we tell? We know that the jury refused to suspend the sentence, and we further know that appellant was awarded the highest punishment allowed by law for the offense of which he was convicted. It may be this charge from the "Lord's anointed" turned the scale against the defendant, and doubtless did, and caused the jury to resolve all issues against him.

The wife of appellant was placed upon the stand, and testified for her husband, to the insulting conduct on the part of the deceased toward her, and further, that deceased had had carnal intercourse with her, and that he had accomplished this by hypnotizing her, and that she communicated these facts to the defendant prior to the homicide. After she had so testified, the State, upon cross-examination, asked the following question: "Isn't it a fact that your husband, the defendant, W.I. Tyrone, had you to place your hand — one hand on the Bible and one hand on your heart and say that there had never been anything wrong between yourself and Dr. Evers?" Evers was the deceased. Various objections were urged to this; that she was the wife of defendant, and could not be cross-examined on any matter about which she did not testify in her direct examination, and because it was an effort on the part of the State to introduce a privileged communication or conversation between husband and wife. Appellant also asked the court to instruct the jury not to consider this for any purpose. The court qualifies this bill by stating such question was proper examination of the matters elicited by the defendant. The writer agrees with the appellant in this contention. This was privileged matter which is held sacred by the statute.

It does seem to me that this record manifests the fact that the appellant has not had a fair trial such as the law guarantees to the citizen when tried for his life and liberty. If the rule of substantial justice is to be invoked for the State and made the criterion of decision against the citizen, why would not a failure of substantial justice be equally invoked in behalf of the citizen as to his right for fair and just trial? The rule ought to be made to work both ways, if used in criminal trials, and not used to deprive the citizen of a fair trial.

For the reasons indicated the judgment ought to be reversed and the cause remanded.