The appellant was given the death penalty for murder and brings this appeal.
The sufficiency of the evidence in the case to warrant the jury's verdict is not disputed. According to the state's theory, the appellant, a young negro, had robbed an old man of his race, taking the sum of Sixty Dollars, and later stabbed him fatally in the streets of Houston at a late hour in the night for the purpose of preventing the deceased from prosecuting him on a robbery charge. There were a few people on the street who saw the things that took place, among them being two policemen who were cruising in that vicinity. The appellant escaped but was later arrested and identified. His plea was that of self-defense. This was submitted to the jury who evidently did not believe his story which was contradicted by all of the witnesses testifying on the subject. It appears that the state's case was hotly contested, yet no bills of exception are brought forward for the purpose of reviewing any incident of the trial. *Page 66
A brief has been filed in this court and oral argument made upon the submission of the case contending that the act creating the court trying the case is unconstitutional and void. This is based on the contention that the legislature creating the court was not properly organized in that the members of that legislature did not take the oath prescribed by the Constitution of the United States and by the act of congress, as found in Title 5, Section 16, United States Code, Annotated. No evidence was introduced on this subject upon the trial.
Whether the Fortieth Legislature of the State of Texas took the oath as prescribed by the Constitution of the State of Texas and in compliance with the Constitution and laws of the United States is a question of fact which we do not have before us.
It would appear to be sufficient to rest the disposition of this case with the foregoing statement. However, to do so might leave doubt as to our view on an important question. It is not believed that this doubt should exist. For that reason we have examined the authorities submitted to us and feel that a brief summary of our conclusion should be given.
The constitutional oath required for members of the state legislature at the time of the passage of the act creating the court which tried appellant was to the effect that the party taking it would faithfully and impartially discharge and perform all of the duties "agreeably to the Constitution and laws of the United States, and of this State." (Article 16, See. 1, Texas Constitution.)
Section 3 of Article 6, of the Constitution of the United States, says "The senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation to support this constitution * * *." In pursuance to the above provision of the Constitution of the United States, the congress at its first session, in Statute 1, Section 1, prescribed the form of oath as follows: "I, A. B., do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States." This is the substance of the oath required for all parties mentioned in the Sixth Article of the Constitution of the United States. This definitely relates to the legislators of the several states, as well as all executive and judicial officers thereof. *Page 67
Subsequently, congress has enacted Section 16, Title 5, of the United States Code, Annotated, which provides a form of oath to be taken by any person elected or appointed to any office of honor or profit, either in civil, military, or naval service, except the President of the United States. It is the contention, in this appeal, that such prescribed oath must be taken by the members of the legislatures, and all executive and judicial officers of the several states. It is the further contention that the legislature of Texas had failed to take the oath, as thus prescribed, and that such failure renders void the law creating the court in question.
It is our conclusion that the prescribed oath, which congress has given for all elected or appointed officers in the "civil, military or naval service * * * of the United States," except the President, has no application whatsoever to the officers of the states, or any subdivision thereof. We find no basis for the contention that this act applies to the states, and consequently, no consideration need be given to the further contention that it is mandatory.
From no standpoint do we find merit in the contention that the act creating Criminal District Court No. 2, Harris County, the court which tried appellant, was void.
We have carefully examined the record and it affirmatively appears that appellant was given a fair trial by a jury whose verdict is supported by the evidence.
The judgment of the trial court is affirmed.
ON MOTION FOR REHEARING.