Ex Parte Malone v. State , 35 Tex. Crim. 297 ( 1895 )

Inasmuch as I do not agree to the views expressed by my brethren, and as the question is one of practice, I will state the reasons for my dissent. It appears that the original record (made up by the judge in this case who tried the same in chambers, and certified to by him) comes to us on appeal, and a majority of the court refuse to consider said record, as I understand it, because the statement of facts in said record was not prepared under the rule regulating the preparation of a statement of facts in a case tried in term time. So far as I am advised, the exact question here presented has not previously been before this court. In Cole's case, 14 Tex.Crim. App., 579, and in Barber's case, 16 Tex.Crim. App., 369, both of which were proceedings on habeas corpus, the applications were heard in term time, and in said cases the court say that the statement of facts should have been made up as in ordinary cases. In Kramer's case, 19 Tex.Crim. App., 123, the question was simply as to the mode of sending the transcript to the Court of Appeals. In Barrier's case, 17 Tex.Crim. App., 585, which was also a proceeding on habeas corpus, the homicide, which was the basis of the proceeding, was committed in Morris County, and the trial was had before the judge in Titus County, presumably in chambers. In the case the court quotes Arts. 181 and 182 of the Code of Crim. Proc., and then proceeds to say, as to the proper method of practice, as follows: "After the order refusing bail, if the applicant in fact appealed from the judgment, that fact should have been noted in the order by the judge, and all the proceedings and papers should have been transmitted to the clerk of the District Court of Morris County, with a request from the applicant, or the District or County Attorney to the clerk, as the case may be, that he make out and forward a transcript of the same for hearing to the Court of Appeals at its Galveston term, then in session. And upon receipt of such papers and authority the District Clerk of Morris County, who was the proper custodian of the original papers, would have prepared and certified to this court a proper transcript, as in other appealed cases." So far as said decision goes, it accords with my view as to the proper practice in such cases, but nothing is said in regard to the preparation of a statement of facts. The General Statutes, with reference to the preparation of statements of facts, refer exclusively to a statement of facts prepared in a case appealed from a trial during a term. See Art. 784, Code Crim. Proc.; Sayles' Civ. Stats., Arts. 1377-1379; and rules prescribed for the preparation of statement of facts in appealed cases. If these statutes and rules could be invoked at all for a case tried in chambers, it would be in the absence of statutory provisions regulating procedure on the subject, and simply by analogy. To my mind, however, we have statutes regulating the procedure on habeas corpus and statutes for the preparation for appeal of cases so tried in chambers, which regulate the subject, and are inconsistent with said General Statutes. See Arts. 181, 182, 881, Code Crim. Proc. The second of said articles provides: "If the return is made and the proceedings had before a judge in vacation, he shall cause all the proceedings to be written, shall certify to the same and cause them to be filed with the clerk of the court which has jurisdiction of the offense, whose duty it shall be to keep them safely." It will be noted that in the beginning of the article in question the details of the trial are termed "proceedings," and further on it requires that the judge shall cause all the proceedings to be written, shall certify to the same, etc. This apprehends that not a part only, but the entire proceedings, — that is, all that transpires on the trial, including the application for the writ, the writ, the return thereon, all orders of court, and the evidence adduced on the trial — must be reduced to writing by the judge, or by some one under his direction, and the whole record shall be made up and certified to by him, and shall then be filed with the clerk of the court which has jurisdiction of the offense. But it is contended that the word "proceedings" in this article, while it includes everything else occurring on the trial, cannot mean the evidence, because in Article 181, it is provided that, "if the application is heard before a court in session, all the proceedings had shall be entered of record by the clerk as would be done in any other case pending in said court." I might reply that "proceedings" in said article, is limited by the connection in which it is used, to-wit: "as in other cases pending in said court." The word "proceedings" is not so limited in Article 182; and this view is strengthened by the fact that we have a method of procuring a statement of facts in term time, which is regulated by Statute, and we have no such statutory regulation for cases tried in vacation. Nor can Article 881, Code Crim. Proc., be invoked to help out the construction insisted on with reference to the preparation of statement of facts in a case of habeas corpus tried in chambers. Said article is as follows: "When the defendant appeals from a judgment rendered on the bearing of an application under habeas corpus, a transcript of the proceedings in the case shall be made out and certified to, together with all the testimony offered, and shall be sent up to the Court of Appeals for revision. This transcript, when the proceeding takes place before a court in sessson, shall be prepared and certified by the clerk thereof, but when had before a judge in vacation the transcript may be prepared by any person under the direction of the judge, and certified to by such judge." The first portion of said article requires that the transcript shall contain, in addition to the other proceedings, the testimony offered. This shows what the transcript shall contain. The latter portion of said article uses the term "transcript" to comprehend all the proceedings, and is tantamount thereto. In the latter portion of said article it is provided that this transcript is to be prepared by the judge, or under his direction, and certified to by him. It is contended that this merely means that the judge trying a habeas corpus case in chambers shall certify to the application, the writ and return, and orders of the court, and not to the evidence; and that this part of the record is to be gotten up by counsel, and approved by the judge, as in other cases; and we presume by analogy, in case counsel did not agree before the termination of the trial, that the judge would be authorized to allow them ten days after the trial in chambers to prepare and present him a statement of facts, and then, after he has been presented with such statement, he would approve the same, and certify thereto, in connection with the other record, and file the same with the clerk of the court having jurisdiction of the offense, to be by him safely kept, as provided in Article 182. To adopt such a rule would be simply the application of a system of procedure, which by its terms was never intended to provide for an appeal from a habeas corpus trial had in chambers, and to my mind would be an enforced construction, and the importation of a statutory rule inconsistent with the statutes on habeas corpus regulating the procedure on appeal. If we give a fair and reasonable meaning to the terms used in Article 182, there is no difficulty as to the rule of procedure in a case of this character. The judge trying a case in chambers hears the whole case. All the papers are brought before him. The evidence, written and oral, is adduced. This, while the trial proceeds, can easily be reduced to writing. When the trial ends, the record is complete, and all that is necessary is that the judge certify to the correctness thereof, and then deposit the same with the court having jurisdiction of the offense; and, in case of appeal, a certified copy can be made out by the clerk, and forwarded to this court as the record for the trial of the case in the Court of Appeals. This, to my mind, is the obvious meaning of the statute, and, as a rule of practice, appears to have been acted upon by a majority of the judges of the lower courts. In this case, however, while the record was made up and certified in accordance with this view, yet it was not deposited in the court below having jurisdiction of the case, but the original record has been sent up to this court, when we should have been furnished with a certified copy of the original, certified to by the judge who tried the case. Because this was not done, I agree with the majority of the court in the disposition of the case.