King v. State, 44796

Citation473 S.W.2d 43
Decision Date23 November 1971
Docket NumberNo. 44796,44796
PartiesJames Richard KING, Appellant, v. The STATE of Texas, Appellee.
CourtCourt 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.

OPINION

ONION, Presiding Judge.

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.

The Instant Case

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:

'A person represented by legal counsel may in open court or by written instrument voluntarily waive the right to be accused by indictment of any offense other than a capital felony. On waiver as provided in this article, the accused shall be charged by information.'

Such statute enacted by the last session of the Legislature must be viewed in the light of Article I, Sec. 10 (Rights of accused in criminal prosecutions), Texas Constitution, which reads:

'In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; And no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.' (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.

At Common Law

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:

'At common law all offenses above the grade of misdemeanor must be prosecuted by indictment, for it was the policy of the common law that no man should be put on his trial for felony, for which the punishment was death, until the necessity therefor should first be determined by a grand jury on oath. However, in the case of misdemeanors an indictment was not necessary.' 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.

The Federal Constitutional Requirement

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:

'In the present state of the law, the grand jury requirements of the Fifth Amendment are held not binding on the states by virtue of the Fourteenth Amendment. Hurtado v. People of State of California, * * *; Kennedy v. Walker, 1949, 337 U.S. 901, 69 S.Ct. 1046, 93 L.Ed. 1715, * * *; Beck v. Washington, 1962, 369 U.S. 541, 545, 579, 82 S.Ct. 955, 8 L.Ed.2d 98, * * *; Malloy v. Hogan, 1964, 378 U.S. 1, 4, n. 2, 84 S.Ct. 1489, 12 L.Ed.2d 653. * * *' 4 (citations partially omitted)

Other Jurisdictions

Among the other states with similar constitutional provisions as those of Texas there is a split of authority as to...

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