Mischer v. State

• Decision Date: 08 November 1899
• Citation: 53 S.W. 627
• Parties: MISCHER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 627

53 S.W. 627

MISCHER v. STATE.

Court of Criminal Appeals of Texas.

November 8, 1899.

Appeal from district court, Guadalupe county; M. Kennon, Judge.

Ellis Mischer, alias Black Bird, was convicted of rape, and appeals. Affirmed.

Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of rape, and his punishment assessed at death; hence this appeal.

Appellant made a motion to quash the indictment, which was overruled by the court, and he reserved his bill of exception. The indictment was in the usual form, charging that appellant committed the rape, in the county of Colorado, on one Rosa Macha, by force and without her consent. The same was presented by a grand jury of Guadalupe county, and the question raised is as to the authority of the legislature to enact the act of June 18, 1897 (see Acts Sp. Sess. p. 16), with reference to fixing the venue in certain counties in cases of rape. We quote from that portion of the act as follows: "Prosecutions for rape may be commenced and carried on in the county in which the offense is committed, or in any county of the judicial district in which the offense is committed, or in any county of the judicial district, the judge of which resides nearest the county seat of the county in which the offense is committed. When the judicial district comprises only one county, prosecutions may be commenced and carried on in that county, if the offense be committed there, or in any adjoining county." Appellant's motion calls in question the validity of said act of the legislature, as being in contravention of the constitution of the United States, and cites article 6 of the amendments to the federal constitution, as follows: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law," etc. He also urges that said act of the legislature is in violation of section 45 of article 3 of the constitution of the state of Texas. We quote that portion thereof, as follows: "The power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law, and the legislature shall pass laws for that purpose." And also section 56, Id., which provides: "The legislature shall not, except as otherwise provided in this constitution, pass any local or special law, authorizing * * * changing the venue in civil or criminal cases." He further insists that the indictment is defective, in that it fails to show that the place where the offense was committed is within the jurisdiction of the court in which the indictment was presented, in that it appears from said indictment that the offense was committed in the county of Colorado, and beyond the limits of Guadalupe county, and it also appears from said indictment that it was returned into the district court of Guadalupe county, by a grand jury of said Guadalupe county; the same not being the county in which the offense is alleged to have been committed. The able counsel who represented appellant in the court below by appointment does not appear to have followed the case with a brief into this court, which is much to be regretted, inasmuch as the questions presented in the motion in the court below are important, and the assistant attorney general has presented the state's side of the motion in a very exhaustive brief.

With reference to the first proposition of appellant, to the effect that the act of the legislature of the state of Texas authorizing the prosecution of the offense of rape in some county other than the one where the offense was committed, or in some county of the district, is void, because violative of the constitution of the United States, we would say that this is not a new question, the same having long since been settled by judicial decisions, both of the supreme court of the United States and by various state courts, in opposition to the contention of appellant; it being universally held that the article of the constitution cited has reference exclusively to the jurisdiction appertaining to the federal judiciary. We can no better express the view taken on this subject than by quoting from the opinion of Chief Justice Marshall in Barron's Case, 7 Pet. 243, as follows: "The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their constitution, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations of power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes." The language here used was with reference to the fifth amendment, but it is equally applicable to all of the first eight amendments to the constitution of the United States. Barron v. City of Baltimore, 7 Pet. 243; Twitchell v. Com., 7 Wall. 321; Gut v. State, 9 Wall. 35; Eilenbecker v. District Court, 134 U. S. 31, 10 Sup. Ct. 424; Fox v. Ohio, 5 How. 434; Colt v. Eves, 12 Conn. 243; State v. Wells, 46 Iowa, 662. Nor do we find any provision in our state constitution prohibiting the legislature from authorizing a prosecution for an offense committed in this state in some county other than the county where the offense was committed. There is nothing in the sections of our constitution referred to by appellant that would limit the legislature in this matter. Section 45 simply vests power in the courts to change the venue, and section 56 prohibits the legislature from passing any law changing the venue in civil or criminal cases by any local or special law. We do not understand these clauses with reference to giving the legislature authority to pass laws authorizing the courts to change the venue to create a limitation on the legislature with reference to fixing the venue in criminal cases originally. On the contrary, these clauses would appear to apprehend a power in the legislature to fix venue in cases in the first instance. After they are once fixed, the venue can then only be changed through the courts, by a procedure authorized by the legislature. If we look to other sections of our organic law, we do not find any prohibition or limitation on the legislature in regard to the venue of criminal cases. Section 10, art. 1, provides that "in all...