Mischer, Alias Black Bird v. State , 41 Tex. Crim. 212 ( 1899 )

Appellant was convicted of rape, and his punishment assessed at death; hence this appeal.

Appellant made a motion to quash the indictment, which was overruled by the court, and he reserved his bill of exception. The indictment was in the usual form, charging that appellant committed the rape, in the county of Colorado, on one Rosa Macha, by force and without her consent. The same was presented by a grand jury of Guadalupe County, and the question raised is as to the authority of the Legislature to enact the Act of June 18, 1897 (see Acts Special Session, page 16), with reference to fixing the venue in certain counties in cases of rape. We quote from that portion of the act as follows: "Prosecutions for rape may be commenced and carried on in the county in which the offense is committed, or in any county of the judicial district in which the offense is committed, or in any county of the judicial district the judge of which resides nearest the county seat of the county in which the offense is committed. When the judicial district comprises only one county, prosecutions may be commenced and carried on in that county, if the offense be committed there, or in any adjoining county." Appellant's motion calls in question the validity of said act of the Legislature, as being in contravention of the Constitution of the United States, and cites article 6 of the amendments to the Federal Constitution, as follows: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law," etc. He also urges that said act of the Legislature is in violation of section 45 of article 3 of the Constitution of the State of Texas. We quote that portion thereof, as follows: "The power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law, and the Legislature shall pass laws for that purpose." And also section 56, which provides: "The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law, authorizing * * * changing the venue in civil or criminal cases." He further insists that the indictment is defective, in that it fails to show that the place where the offense was committed is within the jurisdiction of the court in which the indictment was presented, in that it appears from said indictment that the offense was committed in the county of Colorado, and beyond the limits of Guadalupe County, and it also appears from said indictment that it was returned into the District Court of Guadalupe County, by a grand jury of said Guadalupe County; the same not being the county in which the offense is alleged to have been committed. The able counsel who represented appellant in the court below by appointment does not appear to have followed the case with a brief into this court, which is much to be regretted, inasmuch as the questions presented in the motion in the court below are important, and the Assistant Attorney-General has presented the State's side of the motion in a very exhaustive brief.

With reference to the first proposition of appellant, to the effect that the act of the Legislature of the State of Texas authorizing the prosecution of the offense of rape in some county other than the one where the offense was committed, or in some county of the district, is void, because violative of the Constitution of the United States, we would say that this is not a new question, the same having long since been settled by judicial decisions, both of the Supreme Court of the United States and by various State courts, in opposition to the contention of appellant; it being universally held that the article of the Constitution cited has reference exclusively to the jurisdiction appertaining to the Federal judiciary. We can no better express the view taken on this subject than by quoting from the opinion of Chief Justice Marshall in Barron's case, 7 Peters, 243, as follows: "The Constitution was ordained and established by the people of the United States for themselves for their own government, and not for the government of the individual States. Each State established a Constitution for itself, and in that Constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their Constitution, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations of power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes." The language here used was with reference to the fifth amendment, but it is equally applicable to all of the first eight amendments to the Constitution of the United States. Barron v. City of Baltimore, 7 Pet., 243; Twitchell v. Com., 7 Wall., 321; Gut v. State, 9 Wall., 35; Eilenbecker v. District Court, 134 U.S. 31, 10 Sup. Ct., 424; Fox v. Ohio, 5 How., 434; Colt v. Eves, 12 Conn. 243; State v. Wells, 46 Iowa 662. Nor do we find any provision in our State Constitution prohibiting the Legislature from authorizing a prosecution for an offense committed in this State in some county other than the county where the offense was committed. There is nothing in the sections of our Constitution referred to by appellant that would limit the Legislature in this matter. Section 45 simply vests power in the courts to change the venue, and section 56 prohibits the Legislature from passing any law changing the venue in civil or criminal cases by any local or special law. We do not understand these clauses with reference to giving the Legislature authority to pass laws authorizing the courts to change the venue to create a limitation on the Legislature with reference to fixing the venue in criminal cases originally. On the contrary, these clauses would appear to apprehend a power in the Legislature to fix venue in cases in the first instance. After they are once fixed, the venue can then only be changed through the courts, by a procedure authorized by the Legislature. If we look to other sections of our organic law, we do not find any prohibition or limitation on the Legislature in regard to the venue of criminal cases. Section 10, article 1, provides that "in all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. * * * And no person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger." Section 15 provides: "The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency." Section 19 provides: "No citizen of this State shall be deprived of life, liberty, property, privileges, or immunities, or in any manner disfranchised, except by the due course of the law of the land. All of these articles are limitations on the power of either the courts or the judiciary. If it could be shown, under section 10, that an indictment by a grand jury meant only a grand jury of the county where the offense was committed, then to deprive a defendant of that right (that is, to authorize him to be indicted by the grand jury in some other county) would not be due course of law. But we seek in vain in the Constitution or elsewhere for such a limitation. In England, where the grand jury system had its birth, a grand jury was drawn from the vicinage where the offense was committed. Indeed, as originally constituted, the jury that tried an offender was composed of the witnesses against him. But, if it be conceded that such was the rule at common law, we only have the common law in force here by adoption, and in the absence of statutory enactment, if we have no constitutional inhibition, our statutes must control in this matter as in every other; and there being no constitutional inhibition, as we have seen, the legislative declaration on this subject is the supreme law. Moreover, the question in this State seems to have been settled long since against the contention of appellant. Ham v. State, 4 Texas Crim. App., 645; Cox v. State, 8 Texas Crim. App., 284. And such seems to be the view entertained by all the authorities, in the absence of some constitutional provision requiring the prosecution to be in the county where the offense was committed, or in some county of the district. 1 Bish. Crim. Proc., secs. 381, 382. In our State the Legislature has exercised the authority for a number of years to fix the venue of cases in counties other than the county where the offense was committed. Code Crim. Proc., arts. 224-246, inclusive. This authority has been unquestioned in a number of cases. For instance, the offense of forgery, it has been held, may be prosecuted in any county where the written instrument was forged, or where the same was used or passed, or attempted to be used or passed. Mason v. State, 32 Tex.Crim. Rep.; Strang v. State, 32 Tex.Crim. Rep.; Thulemeyer v. State,34 Tex. Crim. 619. So, in embezzlement, it has been held that the offense may be prosecuted in the county where the embezzlement took place, or in any county into which the offender may have taken or received the property, or through or into which he may have undertaken to transport it. Cohen v. State, 20 Texas Crim. App., 224. So, where property is stolen in one county and carried into another, the prosecution may be commenced in either. Cox v. State, 41 Tex. 1; Connell v. State, 2 Texas Crim. App., 422; Cameron v. State, 9 Texas Crim. App., 332; Roth v. State, 10 Texas Crim. App., 27; Shubert v. State, 20 Texas Crim. App., 320. And other cases under other statutes might be cited. Furthermore, in our opinion, it was properly alleged in the indictment, which was found and presented by a grand jury of Guadalupe County, that the offense was committed in Colorado County. In Chivarrio v. State, 15 Texas Criminal Appeals, 330, this question was decided. That was a case where the offense was committed in Encinal County, which was an unorganized county, and by legislative enactment was attached to Webb County for judicial purposes. There it was held that the place of the offense was improperly laid in Webb County; that it should have been laid in Encinal County, where it actually occurred. This view was taken because it was not provided that the venue in unorganized counties could be laid, under article 245, Code of Criminal Procedure, in the county where the prosecution was carried on. That case has a direct application to the case at bar, as the act of the Legislature under which this prosecution was begun does not provide that the indictment may allege that the offense was committed in the county where the prosecution was carried on. As to whether Guadalupe County has jurisdiction of this offense, as being in the judicial district in which Colorado County is situated, where the offense was committed, — it was not necessary to make this averment in the indictment, as the court will take judicial cognizance that it is within the same judicial district with Colorado County, where the offense was alleged to have been committed. Boston v. State, 5 Texas Crim. App., 383; 1 Bish. Crim. Proc., sec. 383, subdiv. 2.

Appellant excepted to that portion of the charge of the court which instructed the jury with reference to the defendant's failure to testify. The charge was in accordance with the statute, and was not objectionable. The charge on circumstantial evidence was given in this case, but we presume it was given out of abundant caution, and with the view of extending to appellant all possible benefits of the law to which he might be entitled. In the view we take of it, such a charge, though appellant was not entitled to it, does not suggest a cause of complaint on his part.

We have examined the record carefully, and in our judgment the facts amply sustain the finding of the jury. The defendant was identified by both positive and circumstantial evidence as the perpetrator of the offense. He met his victim on the railroad, as she was returning from Weimer to her home, situated two or three miles from said place; and in order to accomplish his purpose he assaulted and beat her (she being only a 16-year-old girl) into a state of insensibility, then perpetrated the crime, and left her in an unconscious state on the railroad track. Her injuries were of a very serious character, her skull being fractured and her life imperiled. Under the circumstances of this case, we think the jury very properly inflicted the highest penalty known to the law, and the judgment is affirmed.

Affirmed.