King v. State, 44796
Citation | 473 S.W.2d 43 |
Decision Date | 23 November 1971 |
Docket Number | No. 44796,44796 |
Parties | James Richard KING, Appellant, v. The STATE of Texas, Appellee. |
Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
J. Rodney Brister, Dallas, for appellant.
Henry Wade, Dist. Atty., and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers State's Atty., Austin, for the State.
This appeal challenges the constitutionality of an important innovation in Texas criminal procedure.
May an individual represented by counsel voluntarily waive the formal accusation or presentment of a grand jury indictment in a non-capital felony case and agree to be charged by an information signed by the prosecuting attorney?
Thus the question of the constitutionality of Article 1.141, Vernon's Ann.C.C.P. (Acts 1971, 62nd Leg., Chpt. 260--S.B. 116, effective May 19, 1971) is presented in light of Article I, Sec. 10 of the Texas Constitution, Vernon's Ann.St. requiring an indictment in all felony cases.
On June 9, 1971, the appellant entered pleas of guilty before the court to two felonies less than capital for which he had been indicted. At the same time, while represented by counsel, he waived the right to be charged by indictment with the non-capital offense of unlawfully receiving a credit card knowing the same to be stolen. A complaint and information were then filed. The appellant waived trial by jury and entered a guilty plea before the court in Cause No. C--71--4458--H. The appellant was duly admonished by the court as to the consequences of his guilty plea in each of the three cases, evidence was heard and the court assessed punishment at 2 years in the instant case. The notice of appeal was given only in Cause No. C--71--4458--H. It is appellant's contention that the state constitutional provision for an indictment is not a personal right that may be waived but that it is jurisdictional--a limitation upon the court's power rather than a privilege to the defendant. It is appellant's contention that the district court lacked jurisdiction to hear the case without the return of an indictment and that it should not have allowed him to enter a waiver of the same.
Article 1.141, supra, provides:
Such statute enacted by the last session of the Legislature must be viewed in the light of Article I, Sec. 10 ( ), Texas Constitution, which reads:
(emphasis supplied) See also Article 1.05, V.A.C.C.P.
If such constitutional requirement is jurisdictional then the district court never acquired jurisdiction in the instant case and the conviction must be reversed. If, on the other hand, the requirement is only a privilege or right of an accused, which guarantee was waived in accordance with the statute, then the conviction must be affirmed.
The grand jury as first utilized in England was a group of citizens that met occasionally to discuss the action of their neighbors and to ascertain those responsible for crimes committed within the community. It was a device through which information concerning matters of interest to the Crown and obtained. 2 Pollock and Maitland, History of English Law 641, 649 (2d ed., 1898). Note, Waiver of Indictment--Election to be Tried on Information, 24 Ill.L.Rev. 319, 320 (1929). Perhaps as early as the first revolt against the Stuarts the grand jury had begun to be used for the purpose of protecting subjects against arbitrary accusations by the Crown. See McClintock, Indictment by a Grand Jury, 26 Minn.L.Rev. 153 (1942). And there was a reliance upon the grand jury procedure in the American colonies for this same reason. It was not surprising then that the Fifth Amendment with its requirement of a grand jury indictment was adopted or that similar requirements were incorporated into state constitutions.
Further, it should be remembered that:
42 C.J.S. Indictments & Informations § 9 at 837.
Thus an indictment by a grand jury provided 'a means of protection to the citizen against the dangers of a false accusation, or the still greater peril of a sacrifice to public clamor.' In re Wilcox, 153 Misc. 761, 276 N.Y.S. 117, 121 (1934).
May the constitutional guaranty arising out of such a historical background be waived by an accused? First we turn to the federal constitutional provision.
United States v. Gill, 55 F.2d 399 (D.N.M.1931), after reviewing at length the common law history of the federal constitutionality guaranty of a grand jury indictment, concluded that such guaranty was a personal privilege which could be waived, but in absence of a statute authorizing such a waiver the common law governed criminal procedure in federal courts 1 and that the common law did not permit waiver or prosecution of felonies on informations. The Court noted other constitutional rights which were waivable.
Rule 7 of the Federal Rules of Criminal Procedure was subsequently enacted and became effective on March 21, 1946.
In Barkman v. Sanford, 162 F.2d 592 (5th Cir. 1947), cert. den. 332 U.S. 816, 68 S.Ct. 155, 92 L.Ed. 393, the Fifth Circuit was presented with the question of whether Rule 7, subsection (a) and (b), similar to the provisions of Article 1.141, here in question, was violative of that portion of the Fifth Amendment, United States Constitution, which states:
'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *.'
The Court determined that the said Rule 7 was valid because the constitutional provision was designed to confer a right or privilege upon the person, and the right or privilege could be waived. The Court wrote:
'It seems thoroughly established that an intelligent accused may waive any constitutional right that is in the nature of a privilege to him, or that is for his personal protection or benefit.'
The Court further wrote:
'It may be noted in passing that the language of the pertinent part of the amendment is that 'No Person shall be held to answer'--not that 'No Court shall hold any person to answer,' as would likely have been the language had the provision been intended to be a limitation on the jurisdiction or the power of the court instead of a privilege for the protection of the individual. * * * ' 162 F.2d at 594.
In Smith v. United States, 360 U.S. 1, 6, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959), the United States Supreme Court held that where the offense as alleged was a capital offense the waiver of an indictment was invalid. The Court did cite Barkman with approval, noting that federal constitutional guaranty of an indictment may be waived in a non-capital case. 2 It would now appear that the constitutionality of the federal waiver provision has been well settled. 3
Thus it may be seen that the federal constitutional provision is not a limitation upon the jurisdiction of federal courts in non-capital felony cases where there is compliance with the Federal Rules of Criminal Procedure. Edwards v. United States, 265 F.2d 909 (6th Cir. 1959).
And further the waiver of an indictment in a state prosecution is not precluded by the requirement of an indictment under the Fifth Amendment to the Federal Constitution or by the due process clause of the Fourteenth Amendment. Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884); Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 583, 59 L.Ed. 969 (1915); People v. Bradley, 7 Ill.2d 619, 131 N.E.2d 538 (1956); Heath v. State, 198 Md. 455, 85 A.2d 43 (1951).
In Martin v. Beto, 397 F.2d 741, 746 (5th Cir. 1968), it was stated:
* * *'4 (citations partially omitted)
Among the other states with similar constitutional provisions as those of Texas there is a split of authority as to...
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