Calvin v. State
| Decision Date | 01 January 1860 |
| Citation | 25 Tex. 789 |
| Parties | CALVIN, A SLAVE, v. THE STATE. |
| Court | Texas Supreme Court |
Since the adoption of the penal code, the word “feloniously” is not indispensable to the validity of an indictment, even for a capital felony.
The whole spirit of the codes authorizes the courts to dispense with what the books call “terms of art” in the description of offenses in indictments, and also in every part of the indictment.
No alteration can be made in a material respect in an indictment by the counsel, or the district attorney and the defendant, or even by the court.
An indictment thus altered will not support a conviction, notwithstanding it contained two counts, and that no alteration was made in the second count.
The amendments which are allowed relate to matters of form only, and to the name of the party who is accused.
The motion to set aside the verdict and proceedings under the facts in this case should be considered as a motion in arrest of judgment, and ought to have been sustained.
Where a motion to set aside the verdict of guilty in a case of felony, and to annul the proceedings on the indictment, before sentencing the prisoner, was overruled in the district court, and judgment pronounced, this court reversing the judgment and sustaining the motion, on account of a fatally defective indictment, will command the district court to hold the defendant committed until the grand jury shall have an opportunity to present a new indictment.
APPEAL from Rusk. Tried below before the Hon. C. A. Frazer.
Indictment against Calvin, a slave, charging him with the murder of a woman named Vina, a slave. Indictment filed November 4th, 1858; the offense was alleged to have been committed on the fourth day of May, 1858. At the fall term of the district court a trial was had, and the defendant was found guilty by the verdict of the jury, “in manner and form as charged in the indictment.”
The defendant filed at said term, after the return by the jury into court, of their verdict, motions for a new trial and in arrest of judgment, both of which were overuled; from which judgment upon said motion in arrest the defendant gave notice of appeal to the supreme court. Thereupon, “it being demanded of the prisoner if he had anything to say why the sentence of death should not be pronounced against him? in addition to his former plea of ‘not guilty’ herein previously entered, says that he prays an appeal to the supreme court to have the proceedings herein revised.” The district court, instead of rendering a final judgment and sentence upon the verdict, ordered the defendant to be recommitted to the jail of the county, to await the decision of the supreme court. The appeal was dismissed by this court on the 20th day of May, 1859, and on the 23d day of the same month and year, the district attorney filed a motion in the district court, based upon the mandate of the supreme court, dismissing the appeal because no final judgment had been rendered in the case, to enter judgment nunc pro tunc upon the verdict. William Stedman and James H. Jones withdrawing as counsel of the defendant, the court, on the 23d day of May aforesaid appointed Richard S. Walker and John M. Dodson, esquires, to represent him. The opinion shows sufficiently all the other facts; and it is not deemed important in view of the grounds of the decision, to state more fully the various points presented by counsel in the shape of exceptions, protests, motions for new trial, in arrest of judgment, etc. The defendant, by the sentence of the court, was condemned to be hung on the eighth day of July, 1859. He appealed from this final judgment, and assigned as error the judgments of the court overruling the motions for a new trial and in arrest of judgment filed at the fall term, 1858, and at the spring term, 1859; and that sustaining the motion of the district attorney filed at the spring term, 1859, to render judgment upon the verdict, and that also overruling defendant's exceptions and objections filed to said motion. None of the other assignments of error need be here noticed.
T. W. Jones, for the appellant.
Attorney General, for the state.
This case was before us at the last term of this court, and was dismissed because no final judgment had been rendered in the court below. When the mandate of this court was sent down to the district court, a motion was made in behalf of the state, that a final judgment should be rendered upon the verdict of the jury. A final judgment was accordingly rendered by the district court, upon the hearing of the motion, and the case is now again brought before us by appeal. It becomes proper that I should state, with some particularity, the history of the case. The indictment contains two counts. As originally presented by the grand jury, the first count in the indictment charged that the appellant murdered “a negro woman, a slave, named Vina, the property of the heirs of the said Robert Smith, deceased.” The second count alleged that the appellant murdered “a certain negro woman Vina, a slave, the property or slave of one Robert Winn.” The first count in the indictment charged that the murder was committed by striking on the head, with a billet of wood. The second count alleged that the murder was committed in a different manner.
“We agree to the foregoing amendment, and that the same may be filed in this cause.
+-------------------------------+
¦(Signed)¦W. STEDMAN, ¦
+--------+----------------------¦
¦ ¦J. H. JONES, ¦
+--------+----------------------¦
¦ ¦Counsel for defense.” ¦
+-------------------------------+
This paper was accordingly filed in the cause, and the words “the property of the heirs of the said Robert Smith, deceased,” were erased from the first count in the indictment.
The case proceeded to trial, and the prisoner was found guilty of murder as charged in the indictment. The counsel for the prisoner moved for a new trial, which motion was overruled by the court. They then moved to arrest the judgment, on the ground that the indictment was insufficient in law, and for other reasons. The motion in arrest of judgment was overruled, and the prisoner excepted and gave notice of appeal. The case then came to this court, and, as has been before said, the appeal was dismissed for want of final judgment. When the motion was made, at the next term, in the district court, to render judgment nunc pro tunc, that court appointed J. M. Dodson and R. S. Walker, esquires, to represent the prisoner, and show cause, if they could, why final judgment should not be rendered. Those gentlemen presented a great variety of objections to the rendition of the judgment, only one of which need be noticed. In what was called a motion for a new trial, but...
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Brasfield v. State
... ... The connection between the constitutional protection of the grand jury and the statutory provision for amendment of matters of form was implicitly recognized early in the criminal jurisprudence of this State. In Calvin v. State, 25 Tex. 789, 794 (1860), the Court wrote: ... "The indictment is the sworn declaration of the grand jury, and what they in substance 'do say', must stand as they have said it. The law prescribes the extent to which their findings may be amended. The amendments which ... ...
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Burrell v. State
... ... We must first determine if appellant may now raise the question since he failed to object at the time the indictment was amended ... In the early case of Calvin v. Texas, 25 Tex. 789 (1860), where an allegation of ownership was stricken by agreement between the district attorney and defense counsel, the court noted the amendment involved substance and that neither counsel nor the district attorney and the prisoner, nor the trial court could materially ... ...
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Ex parte Guerrero
...bound by any order of the court which it was powerless to enter. Aside from jurisdictional questions, it is observed that in Calvin v. State, 25 Tex. 789 (1860), and Jeters v. State, 128 Tex.Cr.R. 379, 82 S.W.2d 150 (1935), it was held that the court is without authority to amend the substa......
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Martinez v. State
... ... The issue, however, is whether the attachment was necessary to each count of the indictment ... In its "Newsletter" dated December 31, 1971, the Texas District & County Attorneys Association interpreted Calvin v. State, 25 Tex. 789 (1860), to hold that "an unauthorized amendment of one count of an indictment will cause the entire indictment to be void even if another count of the indictment was not affected by the amendment to the other count." The opinion of the Supreme Court reflects that the parties ... ...