Wilkins v. State , 15 Tex. Ct. App. 420 ( 1884 )

Willson, Judge.

In a motion for new trial, it is made to appear, by affidavits which were not controverted, that upon the trial of the case the indictment was not read to the jury, and that the defendant did not plead in the case, nor was any plea entered for him. In the judgment it is recited that the defendant pleaded not guilty, but it is not stated that the indictment was read to the jury, nor that the defendant pleaded not guilty to any particular charge.

We must consider it as a fact, shown by the record, that the indictment was not read to the jury. Such being the case, does this omission invalidate the trial and conviction?

Article 660 of the Code of Criminal Procedure provides as follows:

“A jury having been impanelled in any criminal action, the cause shall proceed to trial in the following order:

‘‘1. The indictment or information shall be read to the jury by the district or county attorney.

“2. The special pleas, if any, shall be read by the defendant’s counsel; and if the plea of not guilty is also relied upon, it shall also be stated.

“3. The district attorney, or the counsel prosecuting in his absence, shall state to the jury the nature of the accusation,1 and the facts which are expected to be proved by the State in support thereof.

“4. The testimony on the part of the State shall be introduced.

“5. The nature of the defenses relied upon shall be stated by the counsel of the defendant, and what are the facts expected to be proved in their support.

“ 6. The testimony on the part of the defendant shall be offered. ,

“7. Rebutting testimony may be offered on the part of the the State and of the defendant.”

If the provisions of this statute, requiring the indictment to be read to the jury, is mandatory, then the failure to observe it is such error as must set aside the conviction. If, however, it is merely directory, it would not necessarily be cause for reversal.

We find, upon investigation, that the rules for determining whether a statute is mandatory or directory are by no means plain and uniform. Courts have differed very much in their opinions upon the subject.

Without entering upon a discussion of the question, upon which there is so much difference of opinion, and upon which that profound jurist, Mr. Cooley, in his great work on Constitutional Limitations, declines to lay down definite rules, we think it sufficient for the purpose of this case to refer to, and adopt as a safe and sound conclusion, the remarks of Justice Moore, of our own Supreme Court, in the case of Campbell v. The State, 42 Texas, 591, in discussing a similar provision of our Code. He says: “Whenever there is reason to apprehend that injury may have resulted to the defendant, especially in a case of felony, from the failure to observe directions given the court by the legislature, we think, unquestionably, the judgment should be reversed.”

We are of the'opinion that a failure to read to the jury, on the trial of a felony case, the indictment, must be regarded as an omission from which we must apprehend that injury may have resulted to the defendant. “Ho person shall be held to answer for a felony, unless on indictment of a grand jury.” (Art. 1, sec. 10, Const.) It is in and by an indictment that a defendant, the court and the jury are specifically informed of the offense for which he is being tried, and it is to the offense charged in the indictment that he enters his plea. We think the reading of the indictment to the trial jury, in a felony ca 3e, is mandatory and essential, and that, were we to hold to the contrary, it would be establishing a loose and dangerous practice, and one which would be in direct contravention to the plainly .expressed will of the legislature. We are not to'be understood as holding that all of the subdivisions of Article 660 are mandatory. On the contrary, we are clearly of the opinion that some of them are not, but may be treated as merely directory.

At the same term of the court at which defendant was convicted, and after his conviction, the court, of its own motion, caused the following nunc pro tune entry to be made upon the minutes, to-wit:

“The State of Texas ) “v. | Ho. 1753. t “Sam. Wilkins. )

“It is ordered by the court that the following order be now entered nunc pro tune as of date January 13, 1883.

“The State of Texas i “v. | Ho. 1753. i “Sam. Wilkins. )

“This cause being called for trial, the State came by James M. Bethany, Esq., district attorney, and the defendant came in person and by counsel, and announced ready. Whereupon came a jury of good and lawful men, who were duly tried, impaneled and sworn according to law, to-wit, John C. Sutton and eleven others. Defendant pleaded not guilty, and mistrial. Jury discharged, after having heard defendant’s plea, the evidence adduced, the argument of counsel and charge of the court.”

This nunc pro tune entry was made upon the court’s own motion, and without notice to the defendant, and after his conviction. We need not pause here to consider whether such an entry has validity, because, even if valid, it does not affect the question as to the reading of the indictment to the jury. -It does not show that the indictment was read to the jury on the occasion of the mistrial, nor does it show to what charge the defendant pleaded; and, even if it were a valid entry, and showed that on that trial the indictment was read to the jury, we are of the opinion that the reading of the indictment to that jury did not dispense with the necessity of reading it to the jury which convicted the defendant.

An objection is made to the charge of the court, that it failed to instruct the jury as to the presumption of defendant’s innocence. Ho special charge supplying this omission was requested by the defendant, and the failure of the court to instruct the jury upon this subject was not excepted to at the trial. It has been held, and we again hold, that the mere omission to charge the presumption of innocence is not error. (Hutto v. The State, 7 Texas Ct. App., 44; Frye v. The State, 7 Texas Ct. App., 94.) If the court had been .requested to give such a charge, and had -refused it, then there would have been error for which the judgment would be reversed. (Hampton v. The State, 1 Texas Ct. App., 652; Coffee v. The State, 5 Texas Ct. App. 545; McMullen v. The State, 5 Texas Ct. App., 577.)

Opinion delivered February 20, 1884.

It was not error to overrule defendant’s amended motion for a new trial, it having been made at a term of the court subsequent to;the term at which he was convicted. A motion for new trial must be made during the term of the court at which the conviction was had. (Code Crim. Proc., Art. 779.)

There are other questions presented in the record which we do not deem it essential to discuss or determine, as they will not be likely to occur upon another trial of the case.

Because the indictment was not read to the jury upon the trial, the judgment is reversed and the cause is remanded.

Reversed and remanded.