Carlson v. State

Winkler, J.

At the September term, 1878, of the District Court of Williamson County, the appellant was tried for the murder of one August Nelson, charged in the indictment, which was presented on November 1, 1866, to have been committed in the county of Williamson, on May 17, A. D. 1866. On the trial the accused was convicted of murder in the second degree, and his punishment assessed at confinement in the State penitentiary for a period of nine years. A motion for a new trial was made and overruled, and from the judgment of conviction this appeal is prosecuted.

We are not permitted to inquire into several interesting features of the case discussed by counsel for the appellant, for the reason that the record presents no such statement of the testimony adduced on the trial below as will permit an inquiry into the evidence. Indeed, counsel do not fail to realize this difficulty in the way of presenting their views of the case, and, in order to relieve themselves of this embarrassing feature, have presented an affidavit of the judge who presided at the trial, explaining how it occurred that a statement of facts was not prepared and properly certified as a part of the record. But this only makes more apparent the fact, patent on the face of the transcript, that the case is before us without a statement of facts such as the law requires.

The effects of this omission are settled by a long line of decisions, commencing soon after the enactment of the statutes on that subject. As to the manner of presenting the evidence in a criminal case on appeal, the Code of Criminal Procedure (art. 604) directs that —

‘ ‘ A statement of facts in a criminal action shall be agreed upon by the district attorney and the defendant, or his counsel ; and when they fail to agree, the same shall be made out and certified as directed in civil suits. In preparing a statement of facts, the rules in civil suits shall apply as to the manner and form of preparing and sending up the same.”

For the rules in. civil suits as to the manner and form of preparing and sending up a statement of facts, see Paschal’s Digest, art. 1490. And in this respect the statute directs that the trial in the appellate tribunal shall be on a statement of facts as agreed upon by the parties, or their attorneys, certified by the judge below; or, should the parties fail to agree, then the judge of the court below shall certify the facts. Pasc. Dig., art. 1581.

These statutes have been before the courts, and every portion, it seems, has been subjected to judicial criticism; but it is believed that it has not been held obligatory on the judge in the first instance to prepare a statement of facts in any case, either civil or criminal. On the contrary, it only becomes the judge’s duty on failure of attorneys to agree. This is the evident import of the statutes on the subject, and has been so held in various decisions ; and it has as uniformly been held that the approval or certificate and signature of the judge is indispensable to the validity of a statement of facts to entitle it to be considered on appeal, for any purpose. Kelso v. Townsend, 13 Texas, 140; Lacey v. Ashe, 21 Texas, 394 (since this last-named case, the rule requiring seals of attorneys or judges in certifying a statement of facts has been held as directory merely, and the signatures of attorneys and judges are held to be the proper test of authenticity). See Branch v. The State, 3 Texas Ct. App. 99; Trevinio v. The State, 2 Texas Ct. App. 90, and authorities there cited; Keef v. The State, 44 Texas, 582; Koontz v. The State, 41 Texas, 571, cited in Brooks’s case, 2 Texas Ct. App. 1.

In the latter case it was said: ‘ ‘ Without a statement of the evidence before the jury, it cannot be ascertained whether the grounds of the motion for a new trial were well taken or not; ’ ’ and in that case the court declined to do more than to see that the indictment sustained the charge and the finding of the jury. See, also, the following cases reported in 3 Texas Ct. App.: Wakefield v. The State, 39 ; Gindrat v. The State, 573 ; Roberts v. The State, 47 ; Booker v. The State, 227 ; Longley v. The State, 611; Courtney v. The State, 257.

After the expiration of the term, the judge has no control over the preparation of a statement of facts. Ferrell v. The State, 2 Texas Ct. App. 399.

In Longley’s case, cited above, it was said: “ It is the general rule, now well settled by a long current of decisions, that without a statement of the facts in evidence before the court and jury, this court, on appeal, will only consider whether the indictment, will sustain the charge and the finding of the jury.” See authorities there cited upon which the rule rests.

We are compelled to try a case upon the record, and whenever it is there apparent that a certain fact exists or does not exist, we are not at liberty to shut our eyes to it, whether noticed in the argument or not. It being a settled rule, without a statement of facts, not to consider more than as to whether the indictment will sustain the charge to the jury, and the finding of the jury, our labors become very much restricted in the investigation of the present case.

The case of Trammel v. The State, 1 Texas Ct. App. 121, is relied on for authority upon which the judgment in the present case should be reversed. It is only necessary to remark that the cases are entirely dissimilar.

It is urged on behalf of appellant that the judge below erred, both in admitting evidence offered by the State and in excluding evidence offered by the accused, and attempted to be drawn out of the State’s witnesses on cross-examination ; but, so far as we have been enabled to determine from the second bill of exceptions, in the absence of a statement of facts, we are unable to discover that the cause of the defendant was prejudiced in any material degree by any of the rulings made.

It is státed in one of the bills of exception that the defendant offered to prove by the witness J ohn Palm the following facts : “ That he (witness) knew John Carlson and August Nelson ; that after said Carlson had killed said Nelson, in May, 1866, he (witness) went to Missouri in the the year 1867 (latter part) or first of 1868, and there met Carlson, who was living openly with his family in the town of Carthage ; that, on his return to the county of Williamson, shortly after seeing said Carlson, he (witness) informed Andrew Nelson, the private prosecutor in this case, of the whereabouts of said Carlson; that said Carlson expressed himself anxious to return to Texas and stand his trial, but that he did not possess the means to do so, and that the information was conveyed to said Nelson at the request of Carlson; and, further, that the whereabouts of said Carlson was generally and notoriously known in the county of Williamson for many years before the spring of 1878; to the proof of which facts the State objected by counsel, because the same was irrelevant and immaterial.” The court sustained the objection, and the defendant took a bill of exceptions to the ruling.

Another bill of exceptions states: “The defendant, on the cross-examination of the witness A. J. Nelson, offered to prove” by said witness, — he himself being the private prosecutor, — for the purpose of showing the animus of said witness, the same to go to his credibility, that he, said witness, knew, or at least had direct and positive information as to the exact whereabouts of the defendant in the State of Missouri, from which State he was brought by requisition, for a number of years prior to the time when he took active measures to secure the arrest of defendant, it having been already shown that he did not act until [the persons named] were dead, they being parties who were present at the killing, and on whom defendant relied in defence; to which the State, by counsel, objected, because said evidence was immaterial.” The court sustained the objection, to which the defendant took a bill of exceptions. In these and kindred rulings we cannot perceive any possible injury to the accused. If the facts be, as intimated in these bills of exception, that the accused, after the homicide, went to a distant portion of the country, and there remained and lived o¡)enly with his family for a number of years prior to his arrest, and these facts were known to the community of the homicide and to the relations of the deceased, we are unable to see that these circumstances could, if proved, have benefited the accused; and if he has so remained away until after the death of important witnesses, he so remained away at his own peril. We see no reason why he could not have returned and placed himself under the protection of the law long years before the time of his arrest and return on requisition, as mentioned in the bill of exceptions, there being no" intimation that the deceased persons did not die natural deaths.

Still, we are of opinion that these questions are not properly before us, and that they cannot properly avail the appellant; unless, indeed, the bill of exceptions had contained all the evidence, when he could have, perhaps, availed himself of the rule in Bennett v. Dowling, 22 Texas, 660, where it was said : “ The bill of exceptions, under the hand and seal of the presiding judge, contains a full statement of all the facts given in evidence, according to the certificate attached thereto, and was intended to embrace both a statement of facts as well as the bill of exceptions.”

Another bill of exceptions recites 16 that, on the trial of this cause, the State having placed Andrew Nelson on the stand, and he having testified as set out in the statement of facts, the defendant offered to prove by the said witness, on further cross-examination, as follows, for the purpose of showing the animus of the witness, it having been admitted and proved that he was the brother of deceased, and was the private prosecutor in the cause :

“1. That he was informed in the year 1869, by John Palm, that the defendant was openly residing in the town of Carthage, Missouri. 2. That the said defendant sent word to said witness by said Palm that he (defendant) was anxious to return and stand his trial, but that he was too poor to pay his expenses. 3. That it was generally known in the county of Williamson for many years where defendant, Carlson, was living-; to which the State objected, because the same was immaterial.” The objection was sustained by the court, and the defendant took a bill of exceptions.

This bill of exceptions recites a fact not before noticed,— that the alleged prosecuting witness was the brother of the deceased. We are of opinion that the naked, unexplained facts that the defendant was living openly in the State of Missouri, and that the witness did not promptly procure his arrest, or that he was a brother of deceased, were not calculated of themselves to discredit the witness further than, as already shown by the bill of exceptions, that he was the brother of the deceased, and the "private prosecutor. His credibility was placed before the jury by a charge of which we see no grounds to complain.

What has already been said as to these bills of exception relates as well to others on the rulings upon the evidence.

Several objections to the charge of the court were made in the motion for a new trial, which we deem unnecessary to consider specially. As to the general charge, we fail to discover anything other than a careful regard for the law, and the rights of the State and the accused. The enunciations of the law as to murder in the first and second degrees, and of manslaughter, together with homicide in self-defence and upon previous threats, as well as the definition of express and implied malice, reasonable doubt, and the presumption of innocence, were all eminently fair and correct. And whilst we are unable to see any special necessity for the special instructions given at the instance of the prosecution, and for the accused, we fail to find in them any statement or conclusion calculated to prejudice or mislead the jury, or in any manner injure the rights of the accused.

In fact, the whole conduct of the judge, in view of able and skilful counsel, has, so far as we can determine from the voluminous record before us, not only endeavored to, but has succeeded in holding the scales of justice with a steady and equal hand; and, judging therefrom, we feel warranted in the conclusion that if any injustice had been done the accused on the trial, the judge would have remedied the error by granting a new trial.

The apellant has been well and ably defended, and, so far as we can see, has had the full benefit of a fair and impartial trial, before a proper jury, and on a sufficient indictment, and we find nothing in the record to warrant a reversal of the judgment. The judgment is affirmed.

Affirmed.