Barnett v. State

The judgment herein was affirmed at the Tyler term, 1900, and now comes before us on motion for rehearing. The main insistence of appellant is that article 723, Code of Criminal Procedure, is unconstitutional. We have frequently passed upon this matter, and have uniformly upheld its constitutionality. Johnson v. State, ante, p. 87. But, on account of the very able and ingenious argument of appellant's counsel, we deem the subject of sufficient importance, in deference to said argument, to review the matter again. Prior to the amendment, article 723 (which was then article 685 of the old Code) read: "Whenever it appears by the record in any criminal action upon the appeal of a defendant that any of the requirements of the eight preceding articles have been disregarded, the judgment shall be reversed, provided the error is excepted to at the time of the trial." Under the provisions of this article we had held that, however immaterial the error may have been, if promptly excepted to, and presented by proper bill of exceptions on appeal, the statute was mandatory, and the conviction should be set aside, without inquiry as to the effect of such error in prejudicing defendant's right before the jury. This construction of the article extends as far back in our jurisdiction as Marshall v. State, 40 Tex. 200; and that construction was maintained up to the adoption of the present article 723, which was an amendment of the above quoted article. The uniform trend of authorities under the old article was that the statute made it obligatory upon this court to reverse the judgment, and the reversal was placed upon the sheer force of the statute alone. Now, we base the present ruling upon article 723 and the sheer force of the statute alone. Appellant insists that the Legislature can not interpret a law, and makes a long, elaborate, and ingenious argument to establish this. It is axiomatic the Legislature can not interpret a law, but they can pass a statute to be interpreted by this court. They did pass such a statute (article 685 of the old Code), and they amended that article by the enactment of article 723 of the present Criminal Code. Now, then, when so amended, article 723 must be construed as an integral portion, part, and parcel of the whole Code of Criminal Procedure, and especially as part and parcel of the "eight preceding articles" in the Code of Criminal Procedure. When so construed, we think the only rational, legal, and authorized construction of said articles is: Whenever it appears by the record in any criminal action, upon the appeal of a defendant, that any of the requirements of the eight preceding articles have been disregarded, the judgment shall not be reversed, unless the error appearing from the record was calculated to injure the rights of the defendant, which error shall be excepted to at the time of the trial or on motion for new trial. Now, then, if the judge fails to give a charge in writing applicable to the facts of the case as required by one of the "eight preceding articles," this fact must be excepted to at the time of the trial or on motion for new trial, else we can not review it. This is the clear, reasonable, and rational construction of the article. Article 723 is not a legislative effort to construe the preceding articles, but it is a constitutional amendment of the old article, and, as stated, becomes an integral portion of the Code of Criminal Procedure, and must be construed with reference to it. It is conceded by this court, if the Legislature were to pass a resolution, as insisted upon by appellant, construing any provisions of the Code, their construction of the Code would not bind this court, because it would be a usurpation of judicial power on the part of the Legislature. The three co-ordinate branches of our government must and shall be kept inviolate as long as our form of government exists. But if the Legislature pass a statute modifying the meaning, purpose, and intention of a previous statute, then the last enacted statute must be taken as modifying the previous statute, and to that extent a repeal of the previous statute, so to speak; otherwise, the Legislature could never change a law.

Defendant has no vested right in a remedy or a statute providing a remedy. The eight articles that precede article 723, Code of Criminal Procedure, have no more sanctity than any other article in the Code of Criminal Procedure. They are statutes passed by the Legislature in furtherance of their duty to provide a Code of Criminal Procedure, and so far as they provide a reasonable, adequate, and constitutional remedy for the assertion of legal and constitutional rights, just so long is the statute constitutional. On this subject the rule is tersely stated by Potter, Dwar. St., page 472: "Whatever belongs merely to the remedy may be altered according to the will of the State, always provided the alteration does not impair the obligation of the contract; but, if a statute so changes the nature and extent of an existing remedy as materially to impair the rights and interests of the owner of property, it is just as much a violation of the constitutional provision as if it directly overturned the rights and interests. If the remedy does not impair the right of property itself, if it still leaves the party a substantial remedy according to the course of justice, as the right existed at the time of the passage of the statute, it does not impair the obligation of the contract, nor will it be held to do so merely because the new remedy is less efficient, less speedy, or less convenient than the old one." And again, where the Legislature "provided a new remedy in the cases where the right of re-entry was reserved to enforce the collection of the debt due the landlord, it was held this was an ordinary and proper exercise of legislative power, unless individuals by contract can perpetuate a legal remedy in spite of the Legislature, which is absurd." The State "is bound to afford adequate process for the enforcement of rights, but it has not tied its own hands as to the modes by which it will administer justice. Those, from necessity, belong to the supreme power to prescribe, and their continuance is not the subject of contract between private parties." See Id., p. 473. The same thought is expressed by Black on Interpretation Law, page 265, as follows: "No person has a vested right in any form of procedure. He has only the right of prosecution or defense in the manner prescribed for the time being, and, if this mode of procedure is altered by statute, he has no other right than to proceed according to the altered mode. Indeed, the rule seems to be that statutes pertaining to the remedy or course and form of procedure but which do not destroy all remedy for the enforcement of the right, are retrospective, so as to apply to causes of action subsisting at the date of their passage. Statutes which relate to the mode of procedure, and affect only the remedy and do not impair the obligations of contracts or vested rights, are void; and it is no objection to them that they are retroactive in their operation. It is competent for the Legislature at any time to change the remedy or mode of procedure for enforcing or protecting rights, provided such enactments do not impair the obligations of contracts, or disturb their vested rights; and such remedial statutes take up proceedings in pending causes where they find them; and, when the statute under which such proceedings were commenced is amended, the subsequent proceedings must be regulated by the amendatory act." Now, reverting to the statute under discussion, we find that the Legislature has provided that, if a defendant does not except by bill of exceptions at the time of the trial or on motion for new trial to the charge of the court, we shall not review such matters, and shall not reverse the case unless appellant is shown to have been injured. This statute is certainly adequate for the assertion of appellant's rights, for he can take two or three weeks, often, after the trial, in ascertaining the defects in the court's charge, and set up these real or supposed defects in the motion for new trial, which motion we are required to review, and reverse the judgment if the court has erred in a manner calculated to injure the rights of appellant. Less than this the State could not give. More than this appellant can not ask. In Pena v. State, 38 Texas Criminal Reports, 334, — among the earliest decisions by this court on this subject, — the Court say: "Under the recent act of the Legislature [Acts 25th Legislature, page 17] this court is prohibited from reversing a judgment for material error of the court in regard to charging the law, unless the error shall be excepted to at the time of the trial or on motion for new trial. As stated above, exceptions were not reserved, and, even if the court erred in not charging the law applicable to aggravated assault, and such failure was material error, this court would not be justified in reversing the judgment, unless exception was reserved to this omission of the court either at the time of the trial or on motion for new trial." Every member of this court has, first and last, rendered a decision re-enunciating this principle, and upholding the constitutionality of this statute.

We have been entertained both by the argument and appellant's able brief, and commend him for the great research and learning shown in the preparation thereof. But we can only repeat what has heretofore been said — that article 723, Code of Criminal Procedure, is in all respects constitutional, since it provides a complete, reasonable, perfect, and adequate remedy for the assertion of the rights of appellant under the Constitution of the State of Texas, if availed of at the time authorized by the statute. If he fails to avail himself of the remedies provided by the Legislature, he can not assert his rights; nor can we review or protect his rights, unless he comes within the purview of the statute authorizing the assertion of these rights.

We have carefully reviewed the other assignments of appellant in his motion for rehearing, and do not think any of them are meritorious. The error in the court's charge was not calculated to injure the rights of appellant. The motion for rehearing is accordingly overruled.

Motion overruled.