Johnson v. State , 73 Tex. Crim. 133 ( 1914 )

Appellant's conviction resulted in punishment of a fine of $100 for carrying a pistol. When the case was called for trial he asked a postponement on account of the absence of his attorney. This was overruled, but a bill of exceptions was not reserved, therefore it will not be considered. The application for a continuance was overruled, but no exception reserved. The case was called for trial on the 28th of July. It was ascertained that an information had not been filed when the case was called. A complaint had been filed. The county attorney requested permission to file an information, which, being granted by the court, was presented and signed by the county attorney in open court. When this was done appellant moved to postpone for two days in order that he might have the statutory time of two days in which to file his written pleadings. This was promptly overruled, and he was placed upon his trial. He refused to plead, whereupon the court entered a plea of not guilty. When this was done the county attorney read the information to the jury, and called upon defendant to plead. Failing to respond, the court entered his plea of not guilty. After the jury had been impaneled and sworn, plea of not guilty entered, and pleadings read to the jury, the court stated that defendant was entitled to the two days allowed by the statute, and asked appellant's counsel if he would agree to discharge the jury and postpone the case. The attorney replied, "We make no agreement." Appellant was not requested to make any announcement in regard to this matter. The attorney further remarked that the request for two days time was made before the court entered the plea of not guilty for the defendant. The court thereupon discharged the jury, stating to defendant's attorney that the cause would be set for Thursday at 10 o'clock; Thursday was the 31st of the month, at which time appellant was placed upon trial and convicted. The plea of jeopardy set up all these matters. The court sustained the exception and demurrer of the county attorney to the plea and struck it out. That question, therefore, did not become a matter before the jury on the trial. It will be noted that appellant did not reserve a bill of exceptions to the action of the court overruling his plea or request for two days time, and the record shows no bill of exceptions was reserved to this action of the court. Therefore, that question was waived. If that question was presented to this court, and appellant was insisting that the court erred in not allowing the two days, my brethren would promptly affirm the case, so far as that question is concerned, on the ground that he had not perpetuated it by bill of exceptions, and, therefore, had waived it. Appellant contends his plea of jeopardy should have been sustained, and that the court erred in not so doing; and further erred in sustaining the county attorney's demurrer. It will also be observed that appellant reserved no bill of exceptions to the action of the court permitting the county attorney to file an information, and refusing him the statutory two days in which to file his pleadings. He did not except to any of these matters, so far as a bill of exceptions is concerned, and they are not perpetuated except as stated in the plea of jeopardy. The absence of his counsel, and the application for a continuance, and refusal to grant him the two days, are matters which the defendant could waive, and in the absence of bills of exception those matters can not be considered, and will be considered as waived. In other words, without bills of exception perpetuating these matters they would not be so presented that this court could consider the question in revising the appeal. The court had no authority to withdraw the case from the jury over the protest of appellant after his plea of not guilty had been entered. He was then placed in jeopardy. The issue had been formed, the jury had been sworn, plea of not guilty had been entered, and, of course, jeopardy had attached under all of the authorities. This plea of jeopardy should have remained in the case, and the court erred in sustaining the demurrer to the plea of jeopardy. If the facts sustained the allegations, appellant was entitled to an acquittal under his plea of former jeopardy. The complaint and information were valid on their face, and the only question of which appellant could complain in this connection at that juncture was the failure of the court to allow him two days after the information was filed in which to prepare written pleadings. This was authorized by the statute. This he could waive. He made the point, but reserved no exception, therefore, that question could not be considered here on appeal. It was waived by appellant.

Two bills of exception were reserved to the ruling of the court rejecting testimony offered by the defendant. The case presented itself in this way: Appellant was a negro. There was a social gathering of negroes on the 19th of June, and the constable, Mr. Coe, appointed or deputized or requested, as the case may be, appellant to attend this gathering as an officer or as an assistant to him to preserve the peace and keep order at the gathering. To this end he authorized appellant to carry his pistol while temporarily acting as his deputy or posse comitatus, or whatever he may be termed. Appellant offered evidence to sustain this matter both by himself and the constable, and they would have testified fully to those matters. It is unnecessary to go into a detailed statement of this evidence. Appellant carried the pistol in pursuance of this authority. The State's contention is that the constable had no legal authority to summon appellant to assist him in keeping order at the 19th of June celebration, and appellant should have known this under the law. The proposition is that appellant carried the pistol in good faith and did so with no intention of violating the law, and believed Mr. Coe had authority to summon or appoint him, and that he was acting in obedience to what he believed to be legal authority, and there being no purpose or intent to violate the law, he was entitled to have this issue submitted to the jury. The court declined to submit the issue. My brethren sustain the ruling of the court on this proposition as they do on the other questions discussed. I am of the opinion they are in error on both questions. See Blair v. State, 26 Texas Crim. App., 387; Lyle v. State, 21 Texas Crim. App., 153; Branch's Crim. Law, sec. 188; Jenkins v. State, 47 Tex.Crim. Rep.; O'Connor v. State,40 Tex. 27; Black v. State, 48 Tex.Crim. Rep.. It will be noticed that appellant was not acting under general authority or deputyship, but was specially summoned for the occasion, and our law draws a distinction, as do all the decisions, between a party who undertakes to act without proper appointment and the citizen who is summoned or acts temporarily at the command, summons or appointment of an officer. Appellant as a citizen could not act as a regular deputy unless the appointment is in conformity with the statute, but this does not apply where the citizen is temporarily summoned to discharge the duties for the time being. Under this state of case he would be entitled to carry his pistol while his duties lasted. This has been the subject of many decisions in this State. A citizen specially deputized for the occasion, but not generally speaking, can carry a pistol without violating the law. O'Neal v. State,32 Tex. Crim. 42; Snell v. State, 4 Texas Crim. App., 171; Trawick v. State, 22 S.W. Rep., 593; Strey v. State, 40 S.W. Rep., 997; Gonzales v. State, 53 Tex.Crim. Rep.; Baker v. State, 53 Tex.Crim. Rep.. The case of Baker v. State,61 Tex. Crim. 193, is relied upon by the State as having overruled the Blair and other cases. The Baker case follows the case of Schroeder v. State, 50 Tex.Crim. Rep.; West v. State, 21 Texas Crim. App., 427, and Mangum v. State, 15 Texas Crim. App., 362. These cases, if viewed in the proper light, are not in conflict with the other cases. Even in the Baker case the question was submitted to the jury and the jury found against the accused. Judge Prendergast, writing that opinion, held the matter being properly submitted, and the jury finding against the accused, it would not constitute reversible error; but in the instant case the court refused to permit appellant to introduce evidence showing his defensive matter. This, in my judgment, was clearly error. I do not care to amplify these matters. This negro ought not to have been convicted in the first place, and his plea of jeopardy was good in the second place. The court had no legal authority to withdraw the case from the jury unless with the consent of the defendant. He was not even asked to consent to it. His attorney said he refused to make an agreement about the matter; he, therefore, did not consent to withdraw the case from the jury. He objected, it is true, to the court putting him to trial without the two days, and made the motion. The court overruled it. He does not even assign that as error. He reserved no exception to it, and it passed out of the case. If the matter had come up on that question without bill of exceptions, my brethren would have promptly affirmed the case, holding that he had waived that matter and it was not perpetuated so this court could consider it. They, however, would affirm the case from that viewpoint if it had come up on that question only. Appellant was placed in this position: if he refused the summon of the constable he was punishable; if he obeyed the summon he is forced to pay a fine for carrying the pistol. Can anything be more illegal or unjust? I think not.

This judgment ought to be reversed and this negro ought not to be convicted. For the reasons indicated I respectfully enter my dissent.