On May 16, 1916, appellant was indicted for an attempt to rape a little girl three years old, tried and convicted on October 11, 1916, with his punishment assessed at the lowest prescribed by law.
On June 16th, the case was called for trial, both parties announced ready, a jury was duly empaneled, sworn, etc., the indictment read, appellant pleaded not guilty, and the witnesses sworn and placed under the rule. The trial judge appointed Mr. Price, a practicing attorney of the court, to prepare and present appellant's plea for a suspended sentence, "and who with defendant's consent acted generally as his counsel" thereafter in the case.
The State then placed the little girl on the stand, and she was examined on her direct examination by the State's attorney. The appellant's attorney cross-examined her, and then challenged her competency to testify. The judge then examined her, and thereupon held she was incompetent to testify. What her testimony was is in no way shown by the record herein. The State then claimed surprise, and the solemn judgment of the court on this matter at the time adjudged was: "Thereupon leave was granted the State to withdraw its announcement of ready with the consent of thedefendant, and cause was continued by consent of State anddefendant, and the jury discharged."
At the next term, on October 11th, the case was tried, which resulted in his conviction, as stated. At this trial he pleaded former jeopardy, alleging substantially the facts above shown, and that when the court held said little girl incompetent to testify, the county attorney then "withdrew his announcement of ready for trial and asked that the cause be continued until the next term of court. The court thereupon inquired if the defendant had any objection, and the aforesaid defendant's counsel, Mr. Price, replied that he had none. The defendant stood mute, neither objecting or consenting in person. Whereupon the *Page 533 court discharged the jury and continued the cause." The court solemnly adjudged at the time as quoted above.
The statute (art. 616, C.C.P.) expressly prescribes: "A continuance may be granted on the application of the State or defendant after the trial has commenced, when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial commenced, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial can not be had, or the trial may be postponed to a subsequent day of the term." The trial court acted strictly under, and in accordance with, that statute. It has been in force and effect at least ever since the codes were first adopted in 1856, and has been re-enacted by the Legislature every time the statutes have been revised since then. It specifically shows on its face that the object of the law, and the Legislature, was, that each side, the State as well as the accused, should have a fair trial, and if an unexpected occasion arose, at any time after the trial commenced, and before its conclusion, whereby it should be made to appear to the satisfaction of the trial court that the applicant, whether the State or defendant — the State in this instance — was so taken by surprise that a fair trial could not be had, to then grant a continuance. And under such circumstances jeopardy would not, and could not, attach, and the action of the trial judge should and must be sustained. When the contingency arises which makes it proper for the trial judge in his judicial discretion to grant a continuance under this statute, it would be wholly unnecessary for the defendant to consent. In fact, it could legally be granted over and against his active and express opposition, in which case jeopardy would not attach nor apply. In this instance, however, as solemnly adjudicated by the court at the time between the State and appellant, the State withdrew its announcement of ready, "with the consent of defendant, and cause was continued byconsent of State and defendant."
We have another statute (art. 757, C.C.P.) which provides that, even after all the trial has been had except the rendition of the verdict, "if, after the retirement of the jury, in a felony case, any one of them becomes so sick as to prevent the continuance of his duty, or any accident or circumstance occurs to prevent their being kept together, the jury may be discharged." This article has been expressly held constitutional by this court, and not in conflict with the jeopardy clause (art. 1, sec. 14) of our Constitution, in Woodward v. State, 42 Tex.Crim. Rep.. In the opinion in that case many authorities sustaining said holding are cited. That decision and authorities is clearly applicable to article 616, C.C.P., above quoted.
As to whether or not appellant's said plea of jeopardy raised such an issue of fact as required the trial judge to submit the question to the jury, and prevented him from passing on it as a question of law, will now be discussed.
The substance in full of the plea is given above. It is unnecessary *Page 534 to repeat it. The State by its answer first specially excepted thereto as follows: "Because said pleading on its face shows that the court permitted the State to withdraw its motion of ready for trial, after the complaining witness had broken down on the witness stand and been declared incompetent to testify as a witness, and continued the cause, which was within the discretion of the court, and said pleading states no fact or facts showing any abuse of such discretion on the part of the court." And then next generally demurred to it as follows: "Now comes the State by her county attorney and demur and except to the plea of former jeopardy filed herein and say the same is wholly insufficient in law and prays that same be not allowed." The court expressly sustained both. Appellant did not amend his plea in any way nor ask to do so, but merely excepted. The plea avers that upon the judge's ruling said little girl incompetent to testify, the county attorney withdrew his announcement of ready for trial, and asked that the cause be continued until the next term of court. The court thereupon inquired if the defendant had any objection, and his attorney replied that he (defendant), had none. The court did not inquire if the attorney had any objection, but if thedefendant had any. The attorney did not reply that he, theattorney, had none, but that he, the defendant, had none. Thedefendant was present and necessarily heard the judge's inquiry of him, not of his attorney, and necessarily heard his attorney's reply, for him, that he, the defendant, had none. In no way by his plea did he aver that he did not hear, or did not know. He replied by and through his attorney that he had no objection. The fact, if so, that he "stood mute, neither objecting or consentingin person," under the circumstances, can not do away with the fact that he announced to the court at the time, when the court inquired of him if he had any objection, by his attorney, "thathe had none." Nor did he, in his plea, aver that he did not consent, nor that his attorney had no authority to tell the judge that he, defendant, had no objection. The judge, in his presence and hearing, immediately, solemnly adjudged between him and the State: "Thereupon leave was granted the State to withdraw its announcement of ready, with the consent of the defendant, and cause was continued, by consent of State and defendant, and the jury was discharged." To which he makes no objection.
It is settled in this State by express statute (art. 22, C.C.P.) that the defendant in a criminal case for any offense may waive any right secured to him by law except a trial by jury in a felony case. It is also well settled by the decisions of this State that a defendant can waive former jeopardy, and he may do so in many different ways. (Johnson v. State, 26 Texas Crim. App., 631. Many other cases could also be cited.) It is also well settled by a large number of decisions that, in matters of former jeopardy, the court can and must take judicial knowledge of all the proceedings in the cause pertaining thereto, *Page 535 both those that occurred at previous terms as well as what occurred when the trial on the main case was had and conviction resulted.
In Schindler v. State, 17 Texas Crim. App., 408, this court when former jeopardy was pleaded, held: "The law vests in the trial judge a discretion, under certain circumstances, to discharge a jury even in a felony case, without the consent of the defendant, and the exercise of such discretion will not be revised by this court, and will not be held to constitute jeopardy, except when it is made clearly to appear that such discretion has been abused."
In O'Connor v. State, 28 Texas Crim. App., 288, the appellant therein pleaded former jeopardy, alleging that at a former term he was put upon trial and the jury was discharged by the court, without his consent and over his protest and without legal cause. The court said (p. 291): "Jeopardy is a special defense, and the burden of establishing it clearly and satisfactorily rests upon the defendant." Then, among other things, that it devolved upon the defendant to prove; "3. That, without his consent and without legal cause, the trial court discharged the jury trying him before said jury had rendered a verdict in said cause.
"Until these essentials of jeopardy were established firmly by the defendant, the presumption would prevail that the trial court in discharging the jury acted upon legal cause and did not abuse its discretion," citing several cases. Of course, it being necessary to prove these facts, it was also necessary as a basis therefor that the averments of the plea should so allege, as stated in that case. In this case, as shown above, no such allegations were made, and the plea was defective in substance because thereof, and both the special and general demurrrs of the State herein presented such question.
It was also held in Carroll v. State, 50 Tex.Crim. Rep., that a defendant can not plead jeopardy where the jury before which he was first on trial was discharged on his motion or with his consent (citing a large number of authorities). See also Johnson v. State, 73 Tex.Crim. Rep., 164 S.W. Rep., 833.
In Escareno v. State, 16 Texas Crim. App., 85, which was a case wherein the death penalty was assessed and the judgment affirmed, Judge Hurt, writing the opinion of the court, stated in substance and effect that the question was raised that the appellant in that case was not present when his motion for a new trial was acted upon and overruled by the trial judge. Judge Hurt said (p. 92): "But suppose the record shows affirmatively that he was not present when his motion for new trial was overruled, in the assignment of errors it is conceded that this right was waived byhis counsel. The question then is, is defendant bound by this waiver? What is the presumption? It is that his counsel wasauthorized by defendant to make the waiver, and that defendant isbound by it unless he shows that in fact he did not so authorizeit."
There is no statute of this State which prescribes that an accused *Page 536 must in person expressly consent to what the record conclusively shows appellant did consent to in this case, as announced by his attorney in his presence and hearing, and thereupon unquestionably acted upon by the court in his presence and hearing; nor is there any statute which prescribes this by implication. Neither is there any decision of this court holding any such thing. Nor is there any decision of this court which can be found which holds that, under the circumstances as stated in this case, where the defendant in person remains mute, he is not bound by such waiver and agreement when made as shown herein. Neither of the cases of Early v. State, 1 Texas Crim. App., 248; McDuff v. State, 4 id., 58; Hill v. State, 10 id., 618; Bell v. State, 2 id., 215; Pizano v. State, 20 id., 139; Sterling v. State, 15 id., 249, hold any such doctrine, as a reading of each case will demonstrate.
In Eoff v. State, 75 Tex.Crim. Rep., this court held that where appellant's attorney made an agreement in open court in the appellant's presence and hearing, and it was introduced in evidence without objection by him on the trial, the law would imply his consent thereto. To the same effect is Sutton v. State, 76 Tex.Crim. Rep..
The court, in McDuff v. State, 4 Texas Crim. App., 58, laid down the true rule, which is applicable in this case, saying: "The general rule is that whatever a person can do himself, suijuris, he can do by an attorney. (Parker v. Poole, 12 Tex. 86.) And this rule unquestionably applies in cases of attorneys appointed by the court to represent a party, as well as those cases where the party employs his attorney himself. Ordinarily, the action of the attorney, as the representative of his client in the conduct of the cause, will, and should, be binding upon the client in all matters where by law the client is not specially required to act for himself."
In this McDuff case, however, this state of fact was uncontrovertibly shown: When the indictment was found McDuff was not on bail, but in jail, and he was not able to employ counsel. On September 17th the judge thereupon appointed two attorneys, Dake and Graves, to represent him. Said attorneys, on the next day, "without the knowledge or consent of McDuff, waived a copy of the indictment," and then on that day they declined to represent him, stating to the court, "that they were so prejudiced against him they could not justly represent him," and the court excused them. On September 27th the court appointed another attorney, Mr. Plowman, to represent him. Neither McDuffnor that attorney waived a copy of the indictment. When placed on trial, September 29th, he refused to plead, because he had not been served with a copy of the indictment, and moved and prayed the court to strike out said waiver by Dake and Graves, "because it was made without the knowledge or consent" of McDuff. The court overruled this, and forced him to trial then. The court, after announcing the rule above quoted, said: "The reason and justice of this rule must, however, in the very nature of things, sometimes yield to the peculiar circumstances and surroundings of the case." And correctly *Page 537 held under the circumstances and surroundings of the case, as stated above, that McDuff was not bound by said waiver of Dake and Graves. The court then cited and discussed the statutes requiring that an accused shall be served with a copy of the indictment, and then be allowed two days to plead before he can be forced to trial, saying with reference to the facts of that case: "The client can not be absolutely bound by the act of his attorney, when the act is both prejudicial to his rights and in contravention of known and well established principles of law." But the instant case is nothing like said McDuff case; in fact, is the very reverse of it.
It is the universal practice in this State that an accused on the trial, and in all matters pertaining thereto, acts by and through his attorney, and he does not act himself, and where not positively forbidden by statute the acts and want of acts by the attorney in behalf of his client in his presence and hearing are binding and conclusive upon him unless he personally at the time repudiates such action, or want of action. Trials could not be conducted otherwise, and are not conducted otherwise.
Therefore, the court committed no error in sustaining the State's exceptions, special and general, to appellant's said plea, and this judgment should be affirmed, and it is so ordered.
Affirmed.
DAVIDSON, JUDGE, dissenting, and will write.