Johnson v. State , 31 Tex. Crim. 456 ( 1893 )

1. The appellant was convicted of circulating a libel, and was sentenced to sixty days confinement in the county jail, from which judgment he appeals to this court.

Appellant complains of the error of the court in overruling his motion to transfer this cause to the District Court of Dallas on account of the personal prejudice of the county judge against the defendant. We are of the opinion that the court did not err in refusing to transfer the cause to the District Court. Since the adoption of the constitutional amendment, the right to transfer on account of the disqualifications of the county judge has ceased. Last clause, sec. 16, art. 55, Const. But admitting the prejudice of the trial judge, is the defendant entitled to a reversal of the cause? It seems to be the law, that in the absence of statutory provisions, prejudice not based on the property interest is not a legal disqualification. McCauley v. Weller, 12 Cal. 500; Cooper v. Brewster, 1 Minn. 94; Allen v. Reilly, 15 Nev. 452.

In some States, bias or prejudice on the part of the judge is held, under statutory provisions, to be a sufficient ground for change of venue. McGoon v. Little, 7 Ill. 42; Curran v. Beach,20 Ill. 259; Goldsby v. The State, 18 Ind. 147; Vanderkarr v. The State, 51 Ind. 91; Berner v. Frazier, 8 Iowa 77; Turner v. Hitchcock, 20 Iowa 310; Runals v. Brown, 11 Wis. 193; Ex Parte Curtis, 3 Minn. 274 (Gil., 188); In re Peyton,12 Kan. 398.

But the prejudice must be against the person, and not the cause or defense of a party. Bent v. Lewis, 15 Mo. App., 40. In California, where the statute allows a change of venue "where there is reason to believe an impartial trial can not be had therein," also "when from any cause the judge is disqualified, the court say the exhibition by a judge of partisan feeling, or the unnecessary expression of an opinion upon the justice of a controversy, though undecorous and improper, and calculated to bring the administration of justice into contempt, is not sufficient to authorize a change of venue." Its liability to abuse has induced many States to refuse to allow such a disqualification. The earnestness of a judge in cutting off frivolous objections, or forcing unwilling defendants to trial, especially in cases involving much feeling, may be easily mistaken for personal prejudice. Texas has no such judicial disqualifications (article 569, Code of Criminal Procedure, declaring that no judge shall sit in any case where he may be the party injured, or where he has been of counsel, or where he is related by consanguinity or affinity within the third degree to the accused or injured party); and the change of venue is limited to felony cases, find does not include the prejudice of the judge. Code Crim. Proc., arts. 576, 578.

But while it is true that it may not be a disqualification, yet such a motion as the one in the record, distinctly specifying the grounds upon which it is based, should invoke from the court a very careful scrutiny of all the proceedings, to see that no injustice has been done to defendant's rights.

In examining the specific grounds upon which the charge of prejudice was predicated, we find that on the first trial of this cause, the jury having assessed a fine of $250 against defendant, the court, of its own motion, as he stated from the bench, set aside the verdict as totally inadequate, and granted a new trial. Appellant applied for a new trial, and the trial judge granted it. The fact that he refused to grant it on the grounds set out in appellant's motion, but granted it for a reason satisfactory to himself, does not affect the matter. If, however, it had appeared that the remarks of the court were made in the presence of persons subsequently empanelled as jurors in this cause, this case would be reversed.

Again, the fact that the court, immediately after setting aside the verdict, raised the defendant's bond from $2000, which he was unable to give, to $3000, thus insuring his being detained in custody, can not reverse this case. Defendant had a sufficient remedy by habeas corpus to reduce bail.

Nor does the fact that he compelled Strohm, attorney for defendant, to testify on the first trial, and caused him forthwith to be arrested for perjury, of which he was subsequently acquitted in the District Court, constitute any ground for a reversal of this case. The record does not show that the evidence sought by the State from said attorney was of a confidential nature, and it was not proper testimony, or that defendant's rights in this case were in any way prejudiced by the arrest and acquittal of his attorney prior to this trial.

2. Appellant further complains of the error of the court in overruling his motion to appoint jury commissioners to select the jury by which he was to be tried. We are aware of no statute of this State that gives every individual a right to have jury commissioners appointed for his individual benefit, although he may believe that the sheriff is prejudiced against him. The statute requires the jury commissioners to be appointed by the County Court at the first term after December 31 and June 30, to select the jurors to serve at the terms to be held six months after that term shall have ended. Rev. Stats., arts. 3027, 3029. And it is only where the jury commissioners are not appointed, or fail to act, or the panels are set aside, or the jury lists lost, that the court may appoint jury commissioners to select other jurors. Rev. Stats., art. 3022.

It is not shown that any of these contingencies had occurred. It seems that the demand for a jury commission was predicated entirely on the presumed prejudice on part of the sheriff and his deputies against appellant. If such prejudice existed, it could not have conferred a right on appellant to have demanded a jury commission.

3. Appellant complains that the court erred in overruling his motion for continuance, which was made on account of the absence of a certain witness, by whom he expected to prove the truth of the libel, and that Parry was a terror to houses of prostitution. The correctness of the ruling of the court is to be tested by the libelous matter set out in the indictment. If the libel, as charged, does not come within one of the classes in which the statute permits the truth of the libel to be proven, then the defendant had no right to a continuance. The only ground upon which appellant can claim the right to prove the truth of the libel is, that it charges Owen L. Parry to be a person of notoriously bad character. Penal Code, art. 642, sec. 3.

A careful examination of the libel shows that such is not the fact. On the contrary, it purports to be an expose of an evil life, then unknown to the public, but which the libelant proposes to fully ventilate for the good of society. Appellant sought a continuance on account of one witness; it certainly seems that if libelee's character was notoriously bad, appellant would have no difficulty in securing any number of witnesses to that fact. We do not think, therefore, that the court erred in overruling the motion.

4. Nor do we think the court erred in ruling out the testimony of Essie Watkins, as to the suits brought by her against Parry; they form no part whatever in this case, and could serve no purpose in justifying or explaining the libel upon which the information is based.

For the same reason the fact that she did or did not compromise her suits, is in no way material to the present inquiry; nor was the proof that said Parry was a terror to houses of prostitution. There is no such charge in the present libel. We do not think the errors assigned in the fourth bill of exceptions are well taken.

5. Appellant complains that he was injured by the charge of the court, and that it was erroneous in many particulars. While the charge is incorrect in several particulars, yet so far as the law of this character of libel is concerned, it is correctly laid down.

6. There are no reversible errors, and the judgment is affirmed.

Affirmed.

Judges all present and concurring.