Brown v. State

• Decision Date: 17 November 1909
• Citation: 122 S.W. 565
• Parties: BROWN v. STATE.
• Court: Texas Court of Criminal Appeals

122 S.W. 565

BROWN v. STATE.

Court of Criminal Appeals of Texas.

November 17, 1909.

Appeal from District Court, Donley County; J. N. Browning, Judge.

Hood Brown was convicted of rape, and he appeals. Reversed.

A. T. Cole, J. S. Stallings, H. H. Cooper, and D. W. Odell, for appellant. F. J. McCord, Asst. Atty. Gen., and Henry S. Bishop, Dist. Atty., for the State.

RAMSEY, J.

This appeal is prosecuted from a conviction of rape, had in the district court of Donley county on the 12th day of January of this year, in which judgment the punishment of appellant was assessed at confinement in the penitentiary for a period of six years.

The Assistant Attorney General moves to strike out the statement of facts, for the reason that same is made up wholly of questions and answers, and is, in fact, a literal transcript of the stenographic notes taken on the trial of the case, and not in accordance with the law, which, in terms, prohibits a statement of facts from being so made up. We have heretofore held, in accordance with this motion, that such a statement of facts could not be considered. Essary v. State, 53 Tex. Cr. R. 596, 111 S. W. 927; Hargrave v. State, 53 Tex. Cr. R. 147, 109 S. W. 163. In the absence of statement of facts there are, as we believe, but few questions so presented that we are authorized to consider them. There are, however, some matters which are so presented that we are called on to decide them.

The original indictment was returned in the district court of Potter county, and was some time thereafter transferred on change of venue by the court of its own motion to Donley county, where the case was tried. This action of the court, we infer, was taken under the authority of the act of the special session of the Twenty-Fifth Legislature (Gen. Laws 1897, p. 16, c. 9). This action of the court was at the time properly excepted to, and is so presented that a review of the court's action is required. Appellant challenges the validity of this act of the Legislature, in so far as it can be held to apply to this case, because, as averred, same is void for two reasons: First, because it is violative of article 3, § 35, of the state Constitution in that the caption of the act only states one subject, that of fixing the venue, while the body of the act attempts to fix the venue, and also provide for a change of venue; and for the further reason that said act is violative of article 3, § 36, of the Constitution, in that same does not refer to or re-enact any of the statutes with reference to the change of venue. The caption of the act is as follows: "An act to fix the venue and regulate the proceedings in prosecutions for rape." The validity of this statute, in general, has been sustained by this court, notably in the cases of Mischer v. State, 41 Tex. Cr. R. 212, 53 S. W. 627, 96 Am. St. Rep. 780, and Griffey v. State, 56 S. W. 52. These cases, and the validity of the act in general, were thoroughly reviewed in the recent case of Dies v. State, 117 S. W. 979, and were expressly approved. However, the particular questions raised here are not, in terms, presented in the cases above referred to. We do not believe, however, that the act in question is void for any of the reasons named.

Recurring to the first objection urged, it is well settled that a liberal construction will be applied to an act of the Legislature, in determining whether or not it violates this section of our Constitution. Joliff v. State, 53 Tex. Cr. R. 61, 109 S. W. 176; Breen v. Ry. Co., 44 Tex. 302; Giddings v. San Antonio, 47 Tex. 548, 26 Am. Rep. 321; State v. Parker, 61 Tex. 265; Morris v. State, 62 Tex. 728; Ratigan v. State, 33 Tex. Cr. R. 301, 26 S. W. 407; Tabor v. State, 34 Tex. Cr. R. 631, 31 S. W. 662, 53 Am. St. Rep. 726. The doctrine is well expressed in the case of Fahey v. State, 27 Tex. App. 146, 11 S. W. 108, 11 Am. St. Rep. 182: "Suppose that there be more than one subject mentioned in the acts. If they be germane or subsidiary to the main subject, or if relative directly or indirectly to the main subject—have a mutual connection— and are not foreign to the main subject, or so long as the provisions are of the same nature and come legitimately under one general denomination or subject, we cannot hold the act unconstitutional." And so where the general purport or subject is named, and the exercise of power complained of is reasonably to be gathered and comprised within the general subject, we think the act should be upheld. And so here, where an act, in terms, is denominated an act to fix the venue and regulate the proceedings of prosecutions for rape, it is sufficiently broad, not only to fix the venue, in the first instance, but to provide for the trial of the case in such county or counties as may be provided by law. Nor do we think the act violative of the last article of the Constitution referred to. Section 36, art. 3, is as follows: "No law shall be revived or amended by reference to its title; but in such case the act revived or the section or sections amended shall be re-enacted and published at length." In construing this section of the Constitution our Supreme Court has held that same does not apply to a law which fully declares its provisions without direct reference to any other act, though its effect is to enlarge or restrict the operation of some other statute. Clark v. Finley, 93 Tex. 171, 54 S. W. 343. Nor does same apply to an act perfect in itself and covering the subject-matter of a former act. Johnson v. Martin, 75 Tex. 34, 12 S. W. 321.

2. There are contained in this record 55 bills of exception. In the absence of a statement of facts, there is only one matter which we feel we are authorized to pass on. That is raised by appellant's thirtieth bill of exception. With a view of assuring accuracy, and to present the matter so it will be readily understood, we copy entirely both the bill and the court's explanation of same, as follows:

"After the defendant, Hood Brown, had by his own counsel been placed on the witness stand, and after many and repeated references had been made to a previous trial of this case in Potter county at the county seat in Amarillo, as will be more fully shown by an inspection of the record in this case, the district attorney, H. S. Bishop, purposely and deliberately propounded to the defendant on his cross-examination, and without any effort to show the disappearance of any witness, or any material change in the testimony on the former trial and on this trial, the following question: `This is the first time you have testified in this case, is it not?' The answer was: `Yes, sir.' The question and answer being propounded in such a short time, and the answer elicited in such a short time, that the defendant's counsel had no opportunity to object thereto, except as heretofore shown, but instantly and immediately after the propounding of said question, and while said answer was being elicited, counsel for defendant arose in their seat and said to the court: `If the court please, we object to the question and the answer, for the reasons that it is a comment on the failure of the defendant to testify in the case before.' Whereupon the court remarked: `Gentlemen of the jury, you will not consider that remark, question, nor answer. I have ruled it out.' Counsel for defendant then stated that they wanted the bill to show that the question was asked in the presence of the jury and answered, to all of which proceedings, questions, answers, and observations, the defendant then and there in open court objected as hereinbefore shown, and he here and now says that the same was knowingly and willingly propounded to him in defiance of and in the face of article 770 of our Code of Criminal Procedure, and that without reference to the court's observations that under the facts in this case, as heretofore shown, it was an allusion on the part of the state's counsel to the failure of the defendant to testify to the great and irreparable prejudice in this case of the defendant, and he asks the court, after examining this bill, to allow the same and order it filed as a part of the record in this case, which is here now done.

"Approved and ordered filed as a part of the record in this cause, with this explanation: `I have no recollection of any reference being made to a former trial of the case in Potter county, except that the counsel for defendant, on cross-examination of the witness, Annie Womack, asked her something about her testimony on the trial of this case in Amarillo, immediately after the objection was made as set out in the bill. The court in very forceful and emphatic language withdrew the matter from the jury, and directed them not to consider the question and answer of the defendant for any purpose. The remarks in the bill as to the purpose and deliberateness of the district attorney in asking the question, I think, is more the imagination of defendant's counsel in preparing the bill than the facts would admit. I do not think the question was asked for the purpose of prejudicing the jury against defendant, and I do not think that it had one particle of effect on them. It was merely a slip of the district attorney.'"

While the court's explanation modifies to some extent the statement contained in the bill itself, we think these facts undoubtedly appear, considering both the bill itself and the court's explanation: First, that there was and had been a reference or references made to a former trial of appe...