Johnson v. State

Decision Date06 June 1900
Citation58 S.W. 60
PartiesJOHNSON et al. v. STATE.<SMALL><SUP>1</SUP></SMALL>
CourtTexas Court of Criminal Appeals

Appeal from district court, Wilbarger county; G. A. Brown, Judge.

George Johnson and others were convicted of burglary, and appeal. Affirmed.

Weeks & Fleager, for appellants. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellants were convicted of burglary, and their punishment assessed at confinement in the penitentiary for a term of two years.

We find no bill of exceptions nor statement of facts in the record. Appellants urge error in this court for the first time as to the charge of the court. If article 723 Code Cr. Proc., is constitutional, then, however erroneous the charge of the court may be, appellants having reserved no exception in the court below, either by bill or motion for new trial, they are without remedy at law. We think said article is constitutional, and unless appellants complain of the charge below, and reserved that complaint in a bill of exception or in motion for new trial, then such error cannot be reviewed in this court, however erroneous or fundamental it may be. We think a bare inspection of this article, coupled with the eight preceding articles, clearly manifests this to be the legislative intent. Article 723 reads as follows: "Whenever it appears by the record in any criminal action, upon appeal of 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 defendant, which error shall be excepted to at the time of the trial or on motion for new trial." It has never been successfully controverted, and never really seriously denied, until of late, that the legislature of the state has not ample and complete authority to pass any law regulating the means, manner, and mode of assertion of any of appellant's rights in the court; and so long as this means, manner, and mode be adequate for the assertion of either statutory or constitutional rights, just so long are the statutes and remedies provided by law constitutional. Article 715 provides: "The judge shall give to the jury a written charge, in which he shall distinctly set forth the law applicable to the case, but he shall not express any opinion as to the weight of evidence, nor shall he sum up the testimony. This charge shall be given in all cases of felony whether asked or not." Article 716 provides that the judge shall not discuss the facts; article 717 provides that either party may ask written instructions; article 718, that the charge shall be certified by the judge. Article 719 provides that, in criminal actions for misdemeanor, the court is not required to charge the jury except at the request of counsel on either side, but, when so requested, shall give or refuse such charges, with or without modification, as are asked in writing. Article 720 provides: "No verbal charge shall be given in any case whatever, except in cases of misdemeanor, and then only by consent of the parties." Article 721 provides: "When charges are asked, the judge shall read to the jury only such as he gives." Article 722 provides: "The jury may take with them, in their retirement, the charges given by the court, after the same have been filed, but they shall not be permitted to take with them any charge or portion of a charge that has been asked of the court and which the court has refused to give." Then follows the above quoted article 723. Now, then, in order to construe these articles, they must be considered together. If the judge fails to read to the jury his charge, as provided in article 721, or should give the jury a verbal charge, as provided in article 720, or should disregard any of the eight preceding articles, then, before the same could be availed of in this court as cause for reversal, it must be excepted to by appellant at the time of the trial by bill, or in motion for new trial; otherwise, it is considered as waived, and we are not authorized to consider it. If appellant excepts to the ruling of the court by bill or in motion for new trial, then he has a perfect, complete, and adequate remedy provided by statute for the assertion of his rights. If he fails to do so, then he is cut off, and has no remedy at law or right to a reversal of the case in this court, by sheer force of the fact that any of the eight preceding articles have been disregarded. To hold otherwise would be to say that the legislature could not provide a reasonable, rational, and adequate remedy for the assertion of rights guarantied under the constitution of this state.

The object of article 723, and the legislative intent in passing the same, was to give the trial court an opportunity to rectify and correct errors and rulings in the trial of the cases before them. Hence it is provided that appellant should assert, either in bill of exceptions or motion for new trial, the alleged errors in the trial court, in order that said court may have an opportunity of granting a new trial and correcting such errors. If appellant can come to this court, and complain for the first time of the action of the trial court, without bill of exceptions or motion for new trial, why not permit appellant to disregard the actions and rulings of the trial court, as far as urging them for new trial, and insist for the first time in this court upon their consideration? How it can be seriously insisted that the requirements of said article are not reasonable has never been made to appear in brief or argument in any case filed before us.

The 25th legislature prescribed a new form of recognizance for appeal to this court in misdemeanor cases, and this form provides that the fine and costs assessed against appellant in the lower court must be stated. We have repeatedly held that this is a prerequisite to an appeal to this court. Numerous cases under this statute have been dismissed by us where parties have been deprived of legal, and perhaps constitutional, rights by sheer force of the fact that they have not complied with the strict letter of the law regulating recognizances. It has never been contended that this statute is unconstitutional, yet one can readily imagine cases where several constitutional rights might be denied appellant, and, simply by reason of the fact that his recognizance is not in proper form, his case is dismissed, and his constitutional rights thereby denied him. This is nothing but a remedy,—a reasonable, rational, and adequate legislative requirement for an appeal to this court. If the party follows that remedy, his case is properly docketed and considered; but, if he does not, his appeal is dismissed because of his failure to comply with the adequate remedy provided by the legislature for the assertion of his rights. The same might be said of statement of facts; for unless they are filed within term time, or within 10 days after the adjournment of the court under a 10-day order, they will not be considered; or if they are filed in term time, and not properly certified by the trial court, they will not be considered. Whenever a statement of facts is stricken out for any or either of these reasons, it frequently deprives a party of a constitutional or legal right at least. But it has never been gainsaid, nor is the statute claimed to be unconstitutional. Suppose a court in the trial of a murder case admits evidence going to show defendant has committed arson, robbery, burglary, and theft on divers and sundry occasions, but there is no bill of exceptions reserved to this action of the trial court; this cannot be considered by us, but we have uniformly held that defendant must reserve his bill of exceptions. This is a statutory requirement,—a remedy under which appellant can assert his legal rights. If he does not follow the remedy, he loses his rights; the remedy being adequate and reasonable. The same might be said of the homestead law. A party is sued for his homestead, but makes no answer to the citation. Judgment would be rendered by default. Yet this is a constitutional right, guarantied by express stipulation, that no one's homestead shall be taken under execution or any character of judgment, except for the purchase money and taxes. Yet if one has a judgment against A., and levies on his homestead, buys it in at execution sale, brings trespass to try title, and the homestead plea is not properly filed, the owner is deprived of his home. This is a remedy, but it is manifestly an adequate remedy, and if he does not see fit to assert his rights in the courts at the proper time, and in the proper way and manner, he loses his rights; and he cannot be heard to complain in courts of last resort that his constitutional rights have been taken away from him, when he utters not a word in the lower court to assert those rights. We might continue indefinitely to cite instances where the legislature in its discretion has provided, under the constitution, divers and sundry other manners and means for the assertion of legal and constitutional rights, and where the courts of last resort have upheld the constitutionality of such remedies; but this is unnecessary.

Prior to the adoption of article 723, the old article read as follows: "Whenever it appears, by the record in any criminal action upon appeal of 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." The old article was properly held by this court as being mandatory upon us, and as requiring of us a reversal of the case, whether or not a violation of the eight preceding articles, or any one of them, was calculated to injure his rights; that we had no discretion in the matter; and, in deference to the decision asserting this proposition, the legislature amended said article, and passed the amendment above indicated. This...

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17 cases
  • Meshell v. State, 1339-85
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 1, 1987
    ...to pass any law regulating the means, manner, and mode of assertion of any of [a defendant's] rights in the court." Johnson v. State, 42 Tex.Cr.R. 87, 58 S.W. 60, 71 (1900). A prerequisite to the Legislature's power to act under Article V, § 25, however, is the existence of a right for whic......
  • Dent v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 5, 1901
    ...we do not think appellant is entitled to a reversal. Barnett v. State, 62 S. W. 765, 2 Tex. Ct. Rep. 447; Johnson v. State (Tex. Cr. App.) 58 S. W. 60, 51 L. R. A. 272. Appellant filed a motion for continuance for want of the testimony of J. J. Sutherland and Fred Hasbrugh, by whom he propo......
  • Doyle v. State, 59065
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 19, 1980
    ...41 Tex.Cr.R. 1, 51 S.W. 935, 937-938 (1899); Reid v. State, 57 S.W. 662, 664 (Tex.Cr.App.1900)-until June 6, 1900, and Johnson v. State, 42 Tex.Cr.R. 87, 58 S.W. 60 (1900) and Johnson v. State, 42 Tex.Cr.R. 103, 58 S.W. 69 The constitutionality of Article 723, as amended in 1897, was assail......
  • Almanza v. State, 242-83
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 8, 1984
    ...... rights of the defendant,. which error shall be. excepted to at the time of. the trial, or on a motion. for a new trial. (O.C. 602;. amended Act 1897, p. 17.). . 11 Presiding Judge Davidson had written in his dissenting opinion in Johnson v. State, 42 Tex.Cr.R. 87, 58 S.W. 60 (1900): "[Article 723] requires affirmancies 'unless the error was calculated to injure the rights of defendant.' It has no reference to the settled law of this state, wherein judgments were reversed when the error was of a fundamental nature, or which ......
  • Request a trial to view additional results

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