White v. State
| Decision Date | 01 January 1856 |
| Parties | JOSEPH WHITE v. THE STATE. |
| Court | Texas Supreme Court |
Under the statute of 1848, which divided the crime of murder into murder in the first and murder in the second degree, and declared that “all murder committed by poison, starving or torture, or other premeditated and deliberate killing, or committed in the perpetration or in the attempt at perpetration of arson, rape, robbery or burglary, is murder in the first degree, and all murder not in the first degree is murder of the second degree,” and required the jury to find whether it was murder in the first or second degree, an indictment charging that the murder was committed “feloniously, maliciously, wilfully, premeditatedly and of his malice aforethought,” was held sufficient to charge murder in the first degree; and the court said an indictment in the common law form was sufficient.
Where the order for a special venire, in a capital case, directed that thirty-six “persons” be summoned, etc., and the writ commanded the sheriff to summon thirty-six good and lawful men of the county, and the sheriff returned that he had summoned the following named “jurors,” on objection, for the first time in the supreme court, that the order did not direct thirty-six good and lawful men of the county to be summoned, it was held there was no error.
Where the entry in a capital case stated that “thereupon came a jury of good and lawful men, to wit: (giving the names), who having been duly impaneled, tried, sworn,” etc., and, on appeal, it was objected that the entry did not state that the jurors were “elected,” the objection was not thought to require notice.
Where the order for a special venire in a capital case reads, “then and there to serve as jurors in a certain suit pending before said court, wherein the state of Texas is plaintiff and Joseph White defendant,” and it was objected on appeal that it did not state the case for the trial of which the jurors were summoned, as The State of Texas against Joseph White, indictment for murder, the objection was not thought to require notice.
Where, on appeal in a capital case, it was objected that the names of three of the jurors did not appear on the special venire, and that the record did not show any order for summoning bystanders, the court said the objection should have been made when the jurors were called and offered to the prisoner.
It is good challenge for cause, on the part of the state, in a capital case, that the person called as a juror has conscientious scruples against finding a verdict of guilty, where the punishment is death. [ Post, 445; 18 Tex. 713.]
The judgment in capital cases, where an appeal is taken, need not conform to common law precedents where there was no appeal, but was held to be sufficient, where, the prisoner being led to the bar, it stated that “it is considered by the court that the said Joseph White be taken to the jail of the said county of Liberty, from whence he came, and thence to the place of execution in said county, and there be hanged by the neck until he is dead; but he having given notice of appeal, the time of execution is reserved, and he is remanded to the jail of Liberty county, there to remain until his appeal shall be decided by the supreme court.”
Appeal from Liberty. Tried before the Hon. Peter W. Gray.
Indictment for murder, charging it to have been done “feloniously, maliciously, premeditatedly and of his malice aforethought.”
At the fall term, 1854, the defendant being in custody, the court ordered that a venire facias issue to the sheriff of Liberty county, returnable forthwith, to summon thirty-six persons to appear at the court house in the town of Liberty, forthwith, to serve as jurors in the above cause of The State of Texas against Joseph White, for the murder of Levi Barrow, and that a copy of the indictment and a list of the jurors summoned be delivered immediately to said White.” The venire facias read as follows:
STATE OF TEXAS, County of Liberty.
The state of Texas to the sheriff of said county, greeting. You are hereby commanded to summon thirty-six good and lawful men of your county, to be and appear forthwith, before the honorable the district court of said county, now in session, at the court house in the town of Liberty, then and there to serve as jurors in a certain suit pending before said court, wherein the state of Texas is plaintiff and Joseph White defendant. Herein fail not, etc.; and was returned that in obedience thereto the sheriff had “summoned the following named jurors,” etc., and was accompanied by the sheriff's certificate, that he had delivered to the defendant a list of the said jurors, and a certified copy of the indictment. Arraignment and plea of not guilty. Trial and verdict of guilty of murder in the first degree. The names of the last three named jurors of the panel were not on the special venire, nor did it appear how they were summoned. The entry of the trial stated that the prisoner was led to the bar and announced himself ready for trial, and thereupon came a jury of good and lawful men, to wit: (giving the names), “who having been duly impaneled, tried and sworn, and having heard the evidence,” etc.
It appeared by bill of exceptions, that in impaneling the jury the district attorney put to three of the persons summoned on the special venire, to wit: (naming them), the following interrogatory: Have you conscientious scruples about finding a person guilty, where the punishment is death? to which question the defendant objected; the objection was overruled, to which the defendant excepted; and each of said persons having answered said question in the affirmative, the district attorney challenged them for cause, which challenge was sustained, and said persons were not passed to the prisoner as jurors, to which ruling the defendant excepted.
The charge of the court defined and explained at some length the nature of the crime of murder and the difference between murder in the first and second degree; but as the assignment of error thereon was general, and the brief of counsel was likewise general in its objections, and the point was not noticed by this court, it is not considered necessary to print the charge. There was a full statement of facts, but no point being made thereon, it is omitted.
Motion for new trial on the ground that the verdict was not warranted by the evidence; is contrary to law; the court erred in charge to the jury; in overruling defendant's objections to testimony.
Motion in arrest of judgment, because the verdict was not authorized by law, under the indictment; because the indictment does not set forth one of the necessary facts or constituents of the offense of murder in the first degree.
Final entry as follows:
The State of Texas v. Joseph White. Murder.
This day came again the state of Texas by her district attorney, and the prisoner Joseph White having again been led to the bar in the custody of the sheriff, and the defendant by his counsel moves for a new trial and in arrest of judgment, which motions being heard and considered, were overruled by the court; wherefore it is considered by the court that the said Joseph White be taken to the jail of the said county of Liberty, from whence he came, and thence to the place of execution in said county, and there be hanged by the neck until he is dead; but he having given notice of appeal, the time of execution is reserved, and he is remanded to the jail of Liberty county, there to remain until his appeal shall be decided by the supreme court.
B. C. Franklin, for appellant.
I. Premising that there is no offense known to the common law of England, as now practiced and understood, but has its appropriate penalty prescribed by statute , that no common law penalty can be imposed by the judgment of any court in this state (sec. 59 of the above act), it follows that a common law indictment would not be good, and that every indictment must be framed in reference to the constituents of every offense as defined in our statutes.
The indictment under consideration concludes “against the form of the statute,” and should contain every averment necessary to constitute the offense of murder in the first degree.
The following may be regarded as established principles in Texas, as well as in England:
“If any fact or circumstance, which is a necessary ingredient in the offense, be omitted in the indictment, such omission vitiates the indictment, and the defendant may avail himself of it by demurrer, in arrest of judgment, or on writ of error.” (Chitty's C. L. vol. 1, p.--.)
“All the facts and circumstances which constitute the offense must be stated with such certainty and precision that the defendant may be enabled to judge whether they constitute an indictable offense or not, in order that he may plead or demur; or what species of offense they constitute, to enable him to prepare his defense; and that there may be no doubt as to the judgment which should be given in case of conviction.” (Chitty's C. L. vol. 1, p.--; Bush v. Republic, 1 Tex. 455;Burch v. Republic, 1 Id. 608;Williams v. State, 14 Id. 98; 5 Term, 623.)
“The want of a direct allegation of anything material in the description of the substance, nature or manner of the crime, cannot be supplied by any intendment or implication whatever.” (Hawkins' P. C. Bk. 2, ch. 25, sec. 60.)
“In all criminal prosecutions the accused shall enjoy the right to be informed of the nature and cause of the accusation.” (6th add. to and amend. of the Const. U. S.)
The 69th section of the act of the 9th February, 1854 (Pamp. Laws, p. 70), requires “that the indictment should charge the offense with sufficient certainty for judgment to be given thereon according to the very right of the...
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