Ogle v. State

• Decision Date: 22 June 1901
• Citation: 63 S.W. 1009
• Parties: OGLE v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

63 S.W. 1009

OGLE v. STATE.¹

Court of Criminal Appeals of Texas.

June 22, 1901.

Appeal from district court, Hill county; W. Poindexter, Judge.

S. W. Ogle was convicted of murder, and he appeals. Affirmed.

Ivy & Scruggs, A. W. Cunningham, and J. P. Word, for appellant. Wear, Morrow & Smithdeal, D. Derden, B. Y. Cummings, C. F. Greenwood, Co. Atty., and Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

In 1883 appellant was convicted in Hill county of murder in the second degree, and his punishment assessed at 99 years in the penitentiary. On appeal that judgment was affirmed. 61 S. W. 122. During our recent Dallas term, application was made in his behalf for the writ of habeas corpus on the ground that the conviction was void, and the court trying him had no jurisdiction, because the indictment was presented by a grand jury consisting of 13 men. On the hearing of the writ, appellant was discharged from the penalty of the former conviction. On April 27, 1901, a new indictment was preferred by a grand jury of Hill county. Upon this trial, appellant was again convicted of murder in the second degree, and his punishment assessed at five years' confinement in the penitentiary. The latter indictment was in the usual form, and charged murder in the first as well as the second degree. Appellant pleaded in bar of murder in the first degree his acquittal of that degree under the former indictment, and his conviction of murder in the second degree, which he says is also a bar to a prosecution for murder in the first degree in this case. He also pleaded conviction for murder in the second degree in bar of his trial for that offense under the present indictment, and, further, if his second plea was not well taken, then, under his previous conviction for 99 years he had served something over 17 years of that time before being discharged, and asked, in case of his conviction for murder in the second degree under this indictment, that he be allowed that 17 years as a credit on whatever punishment the jury might assess in this case. The court sustained the demurrer to that portion of the plea which claimed a credit for the time served in the penitentiary under the previous conviction. The state replied to the pleas in bar that the prior indictment was absolutely void; that the district court of Hill county acquired no jurisdiction, and therefore the judgment was void.

Appellant relies upon Mixon's Case, 35 Tex. Cr. R. 458, 34 S. W. 290, in support of his plea of former acquittal of murder in the first degree. The case is not in point. In that case the question of jurisdiction was not an issue. The indictment, though defective on its face, was returned by a legal grand jury. The jurisdiction of the court was not questioned. That case simply holds that an acquittal under an indictment defective on its face as to averments will support the plea setting up that defense under the theory that it was an irregularity provided for by our statute and bill of rights. The particular clause of the bill of rights referred to provides: "* * * Nor shall a person be again put upon trial for the same offense, after verdict of not guilty in a court of competent jurisdiction." Bill of Rights, art. 1, § 14. Before a verdict of not guilty can be obtained, there must be a court of competent jurisdiction to try the case, and its jurisdiction must legally attach in order to authorize a trial. The jurisdiction in Mixon's Case had attached, but, the first indictment being defective, a new trial was awarded. On the subsequent trial, acquittal was pleaded in bar of those degrees of homicide of which the accused was acquitted on the first trial. This was ignored by the trial court, and on appeal held error. But this is not the question here presented. In that case there was jurisdiction. In this case there was not. The Mixon Case has reference to voidable judgments. This case presents the issues of the effect of a void judgment, —one rendered by a court without jurisdiction of the cause it sought to try. We deem it unnecessary to enter into a discussion of judgments or proceedings which are voidable. That question is not involved here. The prior judgment in this case is not voidable, but void, and was set aside by this court by the procurement of appellant. Now, is the first indictment in this case void? The facts show it is, for it was returned by a grand jury composed of 13 men. If void, then its presentment did not attach the jurisdiction of the district court of Hill county. Lott v. State, 18 Tex. App. 627; McNeese v. State, 19 Tex. App. 49; Smith v. State, 19 Tex. App. 95; Ex parte Swain, 19 Tex. App. 323; Rainey v. State, 19 Tex. App. 479; Wells v. State, 21 Tex. App. 596; Kennedy v. State, 22 Tex. App. 693, 3 S. W. 480; Mays v. State, 36 Tex. Cr. R. 437, 37 S. W. 721; Ex parte Ogle (Dallas term, 1901) 61 S. W. 122. So far as we are aware, jurisdiction of the court trying the cause is an essential prerequisite where jeopardy is pleaded. "No matter how far the proceedings may go, there is no jeopardy, unless the court has jurisdiction to try the offense." 17 Am. & Eng. Enc. Law, pp. 586, 587; Wemyss v. Hopkins, L. R. 10 Q. B. 378; Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872; U. S. v. Ball, 163 U. S. 662, 16 Sup. Ct. 1192, 41 L. Ed. 300; Nicholson v. State, 72 Ala. 176; Bradley v. State, 32 Ark. 722; State v. Nichols, 38 Ark. 550; State v. Cheek, 25 Ark. 206; State v. Ward, 48 Ark. 36, 2 S. W. 191, 3 Am. St. Rep. 213; Harp v. State, 59 Ark. 113, 26 S. W. 714. The same rule is laid down in California, Colorado, Georgia, Illinois, Indiana, Iowa, Kentucky, Massachusetts, Mississippi, Nebraska, New Hampshire, New Jersey, New York, North Carolina, Rhode Island, Vermont, Virginia, Washington, and West Virginia. For collation of authorities from these states, see 17 Am. & Eng. Enc. Law, p. 587, note 1. The same rule obtains in this state. Id. "Where the grand jury finding the indictment is illegally organized, * * * the indictment is invalid, and consequently a trial based on it will not bar a subsequent prosecution for the same offense." Id. p. 588; Finley v. State, 61 Ala. 201; Weston v. State, 63 Ala. 155; Brown v. State, 10 Ark. 607; Joy v. State, 14 Ind. 139; Kohlheimer v. State, 39 Miss. 548. Speaking of the same subject, Mr. Bishop says: "When the grand jury is organized so imperfectly as not to be a lawful body, there is no valid indictment, therefore no jeopardy." Bish. Cr. Law, § 1021, citing 39 Miss. 548; 61 Ala. 201; 63 Ala. 155. The Kohlheimer Case, 39 Miss. 548, is directly in point. The substance of that opinion is: "Where the indictment under which a party has been tried and convicted or acquitted is void on the face of the record, because of the illegal organization of the grand jury who found and returned it, such acquittal or conviction is not, either by the common law or the statute of this state, a bar to a subsequent prosecution for the same offense. It is otherwise where the indictment is merely voidable for matter dehors the record." In that case appellant had been tried under an indictment returned by an illegal grand jury, which sought to charge murder, but had been acquitted of the murder and found guilty of manslaughter. This acquittal was set up in bar of murder upon a second trial under a good indictment. Speaking of the constitutional inhibition that no person for the same offense shall be twice put in jeopardy of life and liberty, the court said: "The same provision is contained in the constitution of the United States, and the constitutions of most, if not all, the states; and the decisions of the courts have constantly recognized the principle, under their written constitutions, so fully established by the common law, that, `if the indictment be so defective in form that a valid judgment could not be pronounced upon it against the defendant, he has not been in jeopardy, and, if acquitted, the acquittal would be no bar to another prosecution for the same offense.' [Citing many authorities.] It is further said by Mr. Bishop, upon the authority of many adjudged cases, `that, if sentence be pronounced upon conviction, the defendant will be protected, while the judgment remains unreversed, not because he has ever been in jeopardy, but because of a general and very important principle of law, that an erroneous final judgment, rendered by a competent tribunal having jurisdiction over the subject-matter, is voidable only,' etc. But he further says in this connection: `Where a man is brought before a tribunal that has no jurisdiction over the offense with which he is charged, or that has its existence by virtue of an unconstitutional act of the legislature, or that is holding a term of court unauthorized by law, or that for any other reason has no authority to try him, he is not in jeopardy, however far such tribunal may proceed with the case. And in most, and probably all, of these circumstances the final judgment, when pronounced, is not "voidable," as mentioned in a previous section, but void, so that his conviction, unreversed, is no more a bar to another prosecution than his acquittal.' [That court cites many authorities in support of this proposition.] Mr. Wharton, in his American Criminal Law (section 541), says: `A legal acquittal in any court of competent jurisdiction, if the indictment be good, will be sufficient to preclude any subsequent proceedings before every other court.'" The court then makes this general proposition: "It seems to be clear, therefore, upon principle, as well as authority, that neither at common law nor by our constitution will an acquittal or conviction (where the penalty has not been inflicted) upon a void proceeding or indictment operate as a bar to a subsequent indictment for the same offense. It cannot, therefore, be said that the defendant has been acquitted of the crime of murder by his conviction of manslaughter upon an indictment which is pronounced in this...