Rodgers v. State

• Decision Date: 01 March 1922
• Docket Number: (No. 6313.)
• Parties: RODGERS v. STATE.
• Court: Texas Court of Criminal Appeals

245 S.W. 697

RODGERS v. STATE.

(No. 6313.)

Court of Criminal Appeals of Texas.

March 1, 1922.

Rehearing Denied November 29, 1922.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Cherokee County; L. D. Guinn, Judge.

Wyatt Rodgers was convicted of manslaughter, and he appeals. Affirmed.

Beeman Strong, of Houston, Sanders & Sanders, of Center, Norman, Shook & Gibson, of Rusk, and Chas. L. Black, of Austin, for appellant.

R. H. Hamilton, Asst. Atty. Gen., for the State.

HAWKINS, J.

Upon an indictment for murder appellant was found guilty of manslaughter, and his punishment assessed at confinement in the penitentiary for two years.

This case has been before us at a former time, and the opinion will be found in 85 Tex. Cr. R. 338, 212 S. W. 166. The facts are exhaustively set out in that opinion, and are substantially the same as disclosed by the record now before us. It is not necessary to repeat the facts, but reference is made to the former opinion therefor.

This case originated in Shelby county. In September, 1919, a trial was had in that county, and, the jury having failed to agree, they were discharged on September 14th. The court failed to enter upon the trial docket or to have carried forward in the minutes of the court an order showing the discharge of the jury or the reasons therefor. On February 26, 1920, on the court's own motion, an order was entered, changing the venue of the case from Shelby county to Cherokee county. Appellant on that date entered into recognizance, binding himself to appear in Cherokee county for trial in obedience to the order changing the venue. It having been ascertained that the court in Shelby county had failed to enter an order at the time the jury was discharged upon the trial in 1919, the district attorney filed a motion in the district court of Shelby county on the 30th day of August, 1920, seeking to have said judgment entered nunc pro tunc. He caused notice to be served upon appellant, and on the 3d day of September, 1920, the court in Shelby county, after a hearing upon such motion, entered the judgment discharging the jury, reciting reasons therefor, as of date September 14, 1919. Upon the 17th day of September, 1920, another order was entered by the district court of Shelby county, again changing the venue to Cherokee county, and appellant entered into another recognizance in obedience to the last order. The record shows no order of the district court of Cherokee county transferring the case back to Shelby county prior to the nunc pro tunc judgment. When the case was called for trial in Cherokee county appellant interposed a plea of former jeopardy. He alleges that the jury which was discharged in Shelby county was not held by the court for such a length of time as showed it was altogether improbable they could agree. He also denies that he had given his assent to the discharge of the jury. He asserts that the district court of Shelby county, by the order changing the venue made in February, 1920, had lost jurisdiction of the case, and had no authority in law to enter the judgment nunc pro tunc as to the discharge of the jury. He further asserts that it was necessary for the district court of Shelby county to have made a judicial ascertainment relative to the discharge of the jury and the reasons therefor at the time it was discharged; that the failure of the court to do so renders his plea of former jeopardy good as a matter of law, and that the jury upon this trial should have been peremptorily so instructed.

Unless we be mistaken as to the effect of our own decisions it will not be necessary to determine the validity, or otherwise, of the nunc pro tunc judgment. We agree to the proposition that there should have been a judicial ascertainment of the facts justifying the discharge of the jury, and that this should have been evidenced by a proper entry in the court's minutes. This should have been done in the interest of orderly judicial procedure if for no other reason. But courts operate through human agencies, and oversights and mistakes occur in them as well as in all other departments of government or private enterprises. We would observe here that the entry of the judgment in the minutes of the court is only the evidence of the judicial ascertainment, and not the judicial ascertainment itself. The trial judge doubtless determined the propriety of the jury's discharge, but failed at the time to carry forward in the minutes the judgment evidencing that fact. If the recitals in a judgment discharging a jury were in our state binding on a defendant as upholding or defeating a subsequent plea of jeopardy, we can well understand that a failure to enter such a judgment might be the deprivation of such a right as could well be held a bar to further proceedings by the prosecution. But our court has held, although there was a judicial ascertainment upon the discharge of the jury and the judgment thereof entered of record, a plea of jeopardy raises an issue of fact, and that the party urging it is not bound by the judgment nor the recitals therein. Bland v. State, 42 Tex. Cr. R. 286, 59 S. W. 1119; Vela v. State, 49 Tex. Cr. R. 588, 95 S. W. 529; Hipple v. State, 80 Tex. Cr. R. 531, 191 S. W. 1150, L. R. A. 1917D, 1141. If these opinions be accepted as announcing a sound legal proposition, and the entry of the judgment does not bind the defendant, but leaves him free to present the facts upon his plea of jeopardy, then we are unable to give our assent to the proposition that a failure to enter a judgment at the time the jury is discharged will operate against the state to the extent of making the plea of jeopardy good as a matter of law. If the plea is to be sustained or defeated upon the facts, the facts remain available regardless of the existence or nonexistence of a judgment. This disposes of the assignment of errors urged for failure to give special charges Nos. 1, 3, 6, and 7, and brings us to a consideration of the complaint that the court erred in submitting that issue in the following language:

"You are charged that in passing upon the plea of former jeopardy the burden is upon the defendant, Wyatt Rodgers, to show by the evidence that he is entitled to acquittal on such special plea. If you find from the evidence that the defendant was put upon trial in the district court of Shelby county in September, 1919, and that the case was tried upon the indictment duly presented to the court, the pleas and evidence offered thereon in said case and the jury was charged by the judge and afterwards that said jury was discharged by the district judge of Shelby county, Tex., before they had been together such a time as to render it improbable that they could agree on a verdict, and that the defendant did not agree for the jury to be discharged, you will, if you so find, return a verdict that you find said special plea to be true."

Article 759, Vernon's C. C. P., reads:

"The jury may be discharged after the cause is submitted to them, when they cannot agree, and both parties consent to their discharge, or where they have been kept together for such time as to render it altogether improbable they can agree; in this latter case, the court, in its discretion, may discharge them."

On motion for new trial and in this court it is insisted that the omission of the word "altogether" before "improbable" in the court's charge was a fatal error. Eight special charges were requested by counsel for appellant on the issue of former jeopardy. When we examine the objections filed to the charge at the time of trial, we find nowhere a specific objection calling the court's attention to the omission of the word "altogether." The objections begin by excepting to the submission of the issue of former jeopardy to the jury at all, save as to special charge No. 1, which was to find peremptorily his plea to be true. They then proceed with the objections that if special charge No. 1 be refused the issue ought to be submitted as contained in special charge No. 2, and so on through the entire eight charges. Each of the special charges embracing the language which appellant insists should have been used by the court have connected therewith the issue of a "judicial ascertainment" at the time the jury was discharged, or some other issue involving the question which would have rendered it improper for the court to give it. Where the trial court has entirely omitted to charge upon an issue a special requested charge designed to supply the omission may be sufficient to direct the judge's attention to the omission; but under article 735, C. C. P., as amended in 1913 (Laws 1913, c. 138 [Vernon's Ann. Code Cr. Proc. 1916, art. 735]), where the judge has undertaken to cover an issue in his charge, and the manner of its submission is objectionable to appellant, the objection thereto should be sufficiently specific to direct the judge's attention to the particular thing complained of, and inform him that the special charge is designed to correct it. See Walker v. State, 89 Tex. Cr. R. 76, 229 S. W. 527; Boaz v. State, 89 Tex. Cr. R. 515, 231 S. W. 790.

We are of the opinion that the matter now complained of was not pointed out with sufficient particularity at the time of the trial to be available to appellant at this time. The substance of article 759, C. C. P., was given in charge to the jury. The testimony of the foreman of the former jury was heard. It was shown that the jury retired to consider their verdict about noon on Saturday; that they were discharged about 5 or 6 o'clock the following Sunday afternoon; that they made a report to the judge, and he questioned each one separately as to what they thought about the probability of agreeing, and was advised by all jurors that they were hopelessly disagreed; that appellant and his counsel, as well as counsel representing the state, were in the courtroom at the time; that the judge asked the attorneys if there was any objection from...