Morrison v. State
| Decision Date | 01 January 1874 |
| Citation | 41 Tex. 516 |
| Parties | LITTLETON MORRISON v. THE STATE. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Wharton. Tried below before the Hon. Wm. H. Burkhart.
Morrison was indicted for theft of a hog of the value of twenty dollars, the property of Ira Saunders.
The defendant interposed a special plea that the court had no jurisdiction to try the cause; that the charge was not in law an indictment, having been found without evidence; the witnesses before the grand jury having been sworn only by the foreman, whose authority to administer an oath is restricted by law to the oath of secrecy.
The plea, on exception by the District Attorney, was stricken out.
On the trial the State proved that the accused was overtaken at night, the moon shining, dragging two hogs, which he said he had killed, and he said “he thought the hog belonged to Mr. Hall or Mr. Lawson.” Ownership and value was proved as alleged.
Catharine Johnson, for defendant, proved that she had some hogs, and told defendant to hunt them up for witness, and to kill them if necessary, describing one of her hogs as like that of Saunders. The same facts were testified to by Margaret Morrison.
The judge charged the jury: “That the voluntary confessions of a defendant are evidence against him, and are to be regarded as the strongest proof in the law; and if you believe that the defendant stated, when found with the hogs, that he thought they belonged to Whitten or Lawson or Hall, then you cannot suppose that he thought the hog belonged to Catharine Johnson.”
Verdict of guilty was returned, and the punishment fixed at two years' confinement in the penitentiary.
Judgment was entered upon the verdict, motion for new trial was overruled, and the defendant appealed.
Peticolas & King, for appellant.
George Clark, Attorney General, for the State, confessed error.
The grounds upon which appellant seeks to reverse the judgment against him are presented in his motion for a new trial.
1. Because the court erred in striking out defendant's special plea setting up the want of jurisdiction.
This plea sets up that at the time the indictment was found the witnesses who appeared against him testified in the grand jury room, without having the oath prescribed by law administered to them by any one authorized by law to administer oaths; that the oath was administered by the foreman of the grand jury, and that he had no legal authority to swear a witness generally, but only to administer the oath of secrecy. (Code of Procedure, article 2850.) In support of the plea, we are referred to art. 2951 of the code: “The only special pleas which can be heard for the defendant are--1. That he has been before convicted legally in a court of competent jurisdiction upon the same accusation, after having been tried upon the merits for the same offense; 2. That he has been before acquitted by a jury of the accusation against him in a court of competent jurisdiction, whether the acquittal was regular or irregular; 3. That the court before whom he is prosecuted has no jurisdiction to try the cause.
The last ground is the one on which the plea is based, and which was stricken out by the court on exception thereto by the District Attorney. Conceding that the plea is true, can it be made available as a defense to the indictment? We think not.
The Constitution provides that no person shall be held to answer for any criminal charge but on indictment or information, except in certain cases, but does not prescribe the requisites of either, or the evidence on which it shall be found. They must be sought elsewhere. The pleadings on the part of the State and of the defendant rest on the same authority. If, then, the subject-matter of the plea can avail as a ground of defense to the indictment, the authority for it must be derived from the rules of procedure as found in the Criminal Code. The code provides for the organization of a grand jury, and prescribes rules respecting the proper discharge of their duties, and among others, to inquire into all offenses liable to indictment of which any of the members may have knowledge or of which they shall be informed by the District Attorney or any other credible...
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