I concur in the opinion of Judge Harper in this case on every question discussed and decided, except the last. After a most careful investigation and study of this question I have reached the conclusion that this last question should be decided the reverse of what Judge Harper has written. I do not propose to discuss the question at any length, but feel that in justice to myself it is necessary for me to express my views.
But one case is cited in the opinion to sustain it, — that is, the case of Wells v. State, 21 Texas Crim. App., 594. In the first place, I am convinced that that decision on the point cited is clearly dictum, and should not be followed. The report of that case, and the opinion itself, shows that that question on the point for which it is cited in this case was not needful to the ascertainment of the question between the parties and was altogether unnecessary. As said by the United States Supreme Court in Carroll v. Carroll, 16 Howard, 275 (14 L.Ed., 936), "This court has never held itself bound by any part of an opinion which was not needful to the ascertainment of the question between the parties." In this Wells case, supra, it is shown that this court held that the indictment in that case in which the bond was given, was absolutely void, because it was found by a grand jury composed of thirteen persons, and reversed and dismissed the case on that ground. It was, therefore, wholly unnecessary for the court to have passed upon the other question, and is and should be, held as dictum. I have searched diligently for any other decision by this court referring to or approving the opinion in said Wells case on that question, and have not found any. It is the rule of this court when a reversal is ordered to pretermit the discussion of any question which will not or can not arise on another trial. This should have been done on this question in the Wells case. This rule is followed in this court all the time as shown by the reports. But when this court affirms, it is necessary and proper to decide all pertinent questions, correctly raised.
In the second place, I believe the Wells case on that point was not correct, and that the article of the Code (876), now article 945, was incorrectly construed. That article is: "Where the Court of Criminal Appeals awards a new trial to the defendant, the cause shall stand as it would have stood in case the new trial had been granted by the court *Page 544 below." On this same subject the statute then prescribed as it does now in article 843: "The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place. The former conviction shall be regarded as nopresumption of guilt, nor shall it be alluded to in theargument." (Italics mine.) This latter clause, in my judgment, properly construed, should be applicable to said article 945. I think the Legislature's intention, by the enactment of article 945, was that the effect of awarding a new trial by this court, as it says, should cause the case to stand as it would have stood in case a new trial had been granted by the court below, — that is, the former conviction should be regarded as no presumption of guilt, nor shall it be alluded to in the argument. Simply that and nothing more.
But whether I am right in this construction or not is not the controlling question. Prior to the decision in said Wells case, both this court and the Supreme Court, when it had criminal jurisdiction, expressly decided the question the reverse of what the Wells case on this point holds, and what the opinion in this case holds. This is expressly conceded in Judge Harper's opinion herein. Those cases are Weaver v. State, 43 Tex. 386, and Riviere v. State, 7 Texas Crim. App., 55. In the Weaver case the Supreme Court fully discussed and pointedly decided the question. This court in the Riviere case pointedly stated the question, recognizing the authority in the Weaver case and in effect approved and followed it. I think this court should follow and approve the Weaver and Riviere cases. The Weaver and Riviere cases were not overruled by the Wells case. On the contrary, they were expressly recognized thereby, and simply distinguished by adictum incorrectly to the effect that a new statute made a change. But whether they are approved and followed or not, still under the facts of this case, I believe the only proper construction of our statute providing for an appeal bond on conviction of a felony should be, and is, to hold the sureties on such appeal bond liable if they do not have the appellant appear and stand trial in the District Court when his case has been reversed by this court and remanded for a new trial. The facts in the Wells case, supra, are altogether different from the facts of this case. In the Wells case the defendant had made a bail bond and was out on bail at the time of his trial and conviction in the lower court. Upon conviction and appeal he entered into a recognizance so as to prevent remaining in jail pending his appeal. When this court reversed his case and ordered a new trial in the court below, the court held that that would revive and put in force again the bail bond theretofore given in the lower court before his trial therein. That is not the state of facts in this case. In this he had given no bail bond in the lower court, prior to his trial and conviction therein.
The article of the Code of 1856 (267), now 323, is entirely different. That of 1856 bound the sureties "until his (defendant's) final acquittal or conviction." Now, and when the Wells decision was rendered that *Page 545 article had been changed to read, "until discharged from further liability thereon according to law." Quite a difference.
It is true in law as well as in the affairs of life that "circumstances alter cases." It is also true that a principle of law, when well established, and especially statutory, remains the same. But the application of a given principle to a given state of facts by no means follows. A principle of law that is applicable to one state of facts may be, and frequently is, wholly inapplicable to another. In fact, while a given principle of law may be applicable to one state of facts the reverse or opposite principle may be applicable to an altogether different state of facts.
All rules of construction of statutes are adopted and applied, as held all the time by all the courts, for the purpose of ascertaining the legislative intent. As correctly and tersely said by our Supreme Court in Edwards v. Morton, 92 Tex. 152-3, and approved and quoted by this court in Parshall v. State,62 Tex. Crim. 177, and in fact by all the courts: "The intention of the Legislature in enacting a law is the law itself." There are numerous rules for the construction of statutes. The fundamental object and purpose of all of them is to ascertain and give effect to the intention of the Legislature. I will call attention to some of these rules laid down by text-writers and this court.
In Lewis' Sutherland on Statutory Construction (2. Ed.), vol. II, secs. 415 and 416, he says:
"The modern doctrine is that to construe a statute liberally, or according to its equity, is nothing more than to give effect to it according to the intention of the lawmaker, as indicated by its terms and purposes. This construction may be carried beyond the natural import of the words when essential to answer the evident purpose of the act; so it may restrain the general words to exclude a case not within that purpose."
"416. There is no arbitrary form of words to express any particular intention; the intent is not identical with any phraseology employed to express it. Any language is but a sign, and many signs may be used to signify the same thing. In statutes, the sense signified is the law; the letter is but its servant or its vehicle. Language is so copious and flexible that when general words are used there is an absence of precision, and all words and collocations of words admit of more than one interpretation. In the construction of remedial statutes, while the meaning of the words is not ignored, it will be subordinated to their general effect in combination in a whole act or series of acts, read in the light of all the pertinent facts of every nature of which the courts take judicial notice. Liberal construction of any statute consists in giving the words a meaning which renders it more effectual to accomplish the purpose or fulfill the intent which it plainly discloses. For this purpose, the words may be taken in their fullest and most comprehensive sense. Where the intent of the act is manifest, particular words may have an effect quite beyond their natural signification in aid of that intent."
Our Code of Criminal Procedure, article 25, is: "The provisions of *Page 546 this Code shall be liberally construed so as to attain the objects intended by the Legislature; the prevention, suppression and punishment of crime." Article 5502 (3268), Revised Statutes, is: "The following rules shall govern in the construction of all civil statutory enactments: . . . (subdivision 6.) In all interpretations the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil, and the remedy." Notwithstanding this is the statute as to the construction of civil laws, as this court, in Murray v. State, 21 Texas Crim. App., 620, 2 S.W. Rep., 575, 57 Am. Rep., 623, said of said article of the Revised Statutes, so I say of this article 5502 (3268): "Though embraced in the civil statute, is, in our opinion, equally as applicable and of binding force in criminal prosecutions." These statutes, in connection with articles 9 and 10 of the Penal Code, all of which must be construed together, require this court, as I understand it, to construe all of the penal enactments of the Legislature liberally, and that the old or common-law rule that they were to be construed strictly has been abrogated. The Road Cases,30 Tex. 503; Ex parte Gregory, 20 Texas Crim. App., 210, 54 Am. Rep., 516; Ex parte Garza, 28 Texas Crim. App., 381, 13 S.W. Rep., 779, 19 Am. St. Rep., 845.
Again, this court in Yakel v. State, 30 Texas Crim. App., 391, said: "Statutes should be so construed as to prevent mischievous consequences. Such construction finds itself supported in the good order of society, protection of the weak against the strong, and should be favored, and more especially if such a construction be in opposition to one that would tend to bring about evil results. People v. Garrett (68 Mich. 487), 36 N.W. Rep., 234; Holmes v. State, 88 Ind. 145; Am. Eng. Ency. of Law, p. 702, note 2. The purpose and object of the Legislature in enacting the statute being shown, it is the duty of the court to so construe it as to conform to that intent and carry out such purpose."
In Albrecht v. State, 8 Texas Crim. App., 313, this court held: "If a reasonable construction of the language would tend to effectuate this purpose, and another construction, equally as reasonable, would have a contrary tendency, under well-established canons of construction, courts should not hesitate in choosing the former to the exclusion of the latter. Intention frequently controls express language in the construction of a statute. Walker v. State, 7 Texas Crim. App., 245 (32 Am. Rep., 595)."
Again in Sartain v. State, 10 Texas Crim. App., 651, this court said: "`Courts are not confined to the literal meaning of the words employed, in the construction of statutes, but as was said in Burgett v. Burgett, 10 Rep., 221, the intention of the law-makers may be collected from the cause or necessity of the act; and statutes are sometimes contrary to the literal meaning of the words. It has been decided that a thing within the letter was not within the statute, unless within its intention. The letter is sometimes restrained, sometimes enlarged, and sometimes the construction is contrary to the letter. 4 Bac. tit. Statute, 1, secs. 38, 45, 50. Every statute should be construed with reference *Page 547 to its object, and the will of the law-makers is best promoted by such a construction as secures that object and excludes every other.' Castner v. Walrod, 83 Ill. 171 (25 Am. Rep., 369); Walker v. State, 7 Texas Crim. App., 245 (32 Am. Rep., 595)." And in Whisenhunt v. State, 18 Texas Crim. App., 491, this court again said: "It is a well-settled rule of statutory construction `that the intent and meaning should be followed, although it may seem to be contrary to the letter of the statute.' Sedgwick on Statutory Construction, 256. `Statutes are to be construed according to the intentions of the makers, if these can be ascertained with reasonable certainty, although such construction may seem contrary to the ordinary meaning of the letter of the statute.' Id., p. 313; (Staniels v. Raymond), 4 Cush. (Mass.), 314; (Wilson v. Ireland), 4 Md. 444."
Now I go to the bond itself in this case and quote it. It is:
"The State of Texas v. Joe Bug Roquemore. No. 2929. In the District Court of Angelina County, Texas.
"Know all men by these presents: That, whereas, Joe Bug Roquemore, defendant in the above entitled and numbered cause, was heretofore, on the 12th day of May, A.D. 1909, convicted in this cause for the offense of murder in the second degree, and his punishment assessed at confinement in the State penitentiary for a period of fifteen years; and, whereas, on the 21st day of May, A.D. 1909, the defendant's motion for a new trial was by the court overruled, to which order and judgment of the court the defendant excepted and gave notice in open court of appeal to the Court of Criminal Appeals of the State of Texas; and, whereas, the court thereupon fixed the amount of the bond of the defendant pending said appeal at the sum of Eight Thousand ($8000.00) Dollars; now, therefore, we, Joe Bug Roquemore as principal, together with _____________ and _____________ as sureties. acknowledge ourselves jointly and severally indebted to the State of Texas in the sum of Eight Thousand ($8000.00) Dollars, conditioned that the said Joe Bug Roquemore, principal herein, who stands charged with the offense of murder in this court, and who has been convicted for the offense of murder in the second degree in this court upon a trial of said charge, shall appear before this court from term to term and from day to day of the same, and not depart therefrom without leave of this court in order to abide the judgment of the Court of Criminal Appeals of the State of Texas in this case. (Signed) Joe Bug Roquemore, P.M. Sanders, Jas. W. Christian, W.P. Clevinger, W.G. Watkins, A.J. Murphy, Dr. W.T. Castleberry, R.B. Cleninger, J.P. Clevinger, W.R. McLain."
This bond is in substantial if not literal compliance with the form prescribed by our statute. Arts. 903 and 904, C.C.P.
Now, what is the condition of this bond? It is: "Conditioned that said principal shall appear before this court (the District Court) from term to term and from day to day of the same and not depart therefrom without leave of this court in order to abide the judgment of the Court of Criminal Appeals of the State of Texas in this case." What is the *Page 548 judgment of the Court of Criminal Appeals when it reversed the judgment of the lower court on that appeal? Was it that the principal, Roquemore, should go scott free? Or was it that his sureties were under no obligation whatever to bring him before the said District Court when the case was again called for trial? In my judgment, clearly the effect of the bond upon the reversal of the case by this court was not that he should go scott free. On the contrary, as the bond itself states, "he shall appear before this court (District Court) from term to term and day to day of the same and not depart therefrom without leave of the court (the District Court) in order to abide the judgment of the Court of Criminal Appeals of the State of Texas in this case." I ask again, what was the judgment of the Court of Criminal Appeals in that case? Was if that he should go scott free? Certainly not. But he was to appear before that District Court and stand another trial, the same as if he had never been tried before.
In my judgment to hold that the effect of that bond, upon the reversal by this court of said case, is to turn the appellant scott free, and that it does not require that his sureties shall produce him before the District Court to stand another trial, not only would do violence to the proper construction of said bond and the law, but it would be the reverse of what was intended and meant by the Legislature. As said by Judge Davidson in Yakel v. State, supra, "Statutes should be so construed as to prevent mischievous consequences." And again, as said in Albrecht v. State, supra: "If a reasonable construction of the language would tend to effectuate this purpose, and another construction, equally as reasonable, would have a contrary tendency, under well established canons of construction, courts should not hesitate in choosing the former to the exclusion of the latter." And as again said in Whisenhunt v. State, supra: "The intent and meaning should be followed, although it may seem to be contrary to the letter of the statute. Statutes are to be construed according to the intentions of the makers, if these can be ascertained with reasonable certainty, although such construction may seem contrary to the ordinary meaning of the letter of the statute."
There is nothing in the condition of this bond, nor in our statute, which, to my mind, in any way points to the fact that when this court reverses a felony conviction and orders him to again be tried, and the appellant has prevented his confinement in jail, pending appeal, and has given no bail bond in the lower court prior to his conviction, that he should go scott free. On the contrary, in my judgment, the only reasonable construction, and I believe it was the clear intention of the Legislature, that he is to appear, and his bondsmen are required to produce him before the lower court, when his case is called for trial again and there from day to day and term to term keep him until he is properly convicted or discharged by that court. To hold otherwise, in my opinion, would not only do violence to the proper construction of said bond, but would be the reverse of what was intended and meant by the Legislature. If Roquemore had not given this appeal bond, unquestionably *Page 549 the sheriff would have, as the law requires, taken charge of him and confined him in jail until the disposition of his appeal by this court. Then, instead of going scott free, the sheriff would have had him for the new trial ordered by this court. Instead of this, as said by our Supreme Court when it had criminal jurisdiction, in Gay v. State, 20 Tex. 504: "These manucaptors (his bondsmen) being his jailers and be constantly in a state of commitment," they must produce him before the District Court for trial. In my opinion, being such custodians, they were bound by the bond they voluntarily entered into to produce him before the District Court when his case was again called for trial, and, not doing so, and showing no excuse whatever for not doing so, they must necessarily be compelled to pay their plain voluntary obligation to the State. In law, if not in fact, but I believe in fact, they assumed this obligation knowing that if they did not properly so produce him they must pay their plain, unequivocal statutory obligation. If the construction of Judge Harper should prevail, then said bond binds the sureties, only as if it read: If the Court of Criminal Appeals affirms his case on appeal, his sureties shall produce him before the District Court. If the Court of Criminal Appeals reverses his case, and orders him toappear before said District Court, and stand another trial, he shall go scott free, and his sureties shall not have him before said District Court to stand another trial, nor for any other purpose. To so hold, in my opinion, violence would not only be done to the language of the bond, but to its clear intent and the intent of the Legislature as well.
The form of an appeal recognizance in a misdemeanor case (art. 919, C.C.P.) is not word for word, etc., the same as for felony (art. 903), though they are not materially different.
The Weiseman case from Wilbarger County, recently decided by this court, is entirely correct, and this opinion by me is not in conflict therewith. Nor is it in support of Judge Harper's opinion herein. The sole question in the Weiseman case on this question was: When one indicted for felony had duly made a bail bond before trial, then tried and a verdict of guilty rendered, but set aside and a new trial granted by the trial court at the same term, his bail bond was held to still be in force after the new trial was granted. The question in this case was stated in the Weiseman case, but as stated therein expressly not decided.
Certainly age alone should not make any dictum or wrongdecision the law. The law itself should prevail over anydecision, and especially a wrong decision, however aged it may be. If that should not be the case, then surely this court should not overrule, as it does in effect, the case of O'Brien v. State, 6 Texas Crim. App., 665, which is this day correctly done in the case of Sam Davis v. State, for that decision is seven years older than the decision in the Wells case.
In my opinion this case should be affirmed. *Page 550