In the motion for rehearing stress is laid upon the contention that in instructing the jury the trial court failed to call upon the jury to determine whether the grand jury, at the time the appellant testified before it, was conducting the investigation described in the indictment. It is the appellant's position that the fact being established that certain testimony was given, its materiality may be treated as a question of law and solved by the court, but the other inquiry mentioned, namely, whether an investigation was under way is invariably a question of fact, and the failure of the court to so frame its charge as to submit that issue to the jury is error fatal to the conviction.
The parts of paragraph 2 of the charge deemed proper to illustrate the appellant's claim are as follows:
"If you believe from the evidence in this case, beyond a reasonable doubt, that on or about the 10th day of May, 1923, the grand jury had been theretofore legally organized and empaneled at the regular term of the Criminal District Court in and for Williamson County, Texas, and that D. L. Noble was the legally appointed foreman of said grand jury, and that said grand jury was then and there in session, and if you further believe from the evidence, beyond a reasonable doubt, that on said 10th day of May, 1923, the defendant, A. A. Davis, made his personal appearance before said grand jury, etc."
(Here follows the language requiring a showing that the oath was administered to the appellant, which is followed by an inquiry of the jury whether the appellant gave before the grand jury the testimony imputed to him in the indictment, wherein *Page 398 it is charged that he had certain conversations and transactions with R. W. Burleson concerning his relations with Mrs. Fannie Campbell, and whether the testimony related to actual occurrences.)
"And if you believe from the evidence, beyond a reasonable doubt, that the testimony so given or statements so made by the said A. A. Davis, the defendant, if he did make them, were deliberately and wilfully false, and were deliberately and wilfully made to and before said grand jury, and that said defendant, A. A. Davis, then and there knew said testimony or statements, if any, to be false, if they were, and if you further believe from the evidence, beyond a reasonable doubt, that the falsity of such statements, if they are false, has been established by the testimony of two credible witnesses, or of one credible witness strongly corroborated by other evidence, as to the falsity, if any, then you will find the defendant, A. A. Davis, guilty of perjury."
In addition to the paragraph of the charge above mentioned, the court read to the jury, at the request of the appellant, the following special charge:
"You are instructed that a grand jury is not confined in its investigation of offenses to matters that are brought before it by complaints previously filed but have the authority to investigate any and all offenses."
In the main charge is also found the following:
"The false statement assigned for perjury must be material to the issue with respect to which it was made, and must have been deliberately and wilfully made."
Appellant insists in his motion for rehearing that the instructions given cannot be justly interpreted as calling upon the jury to determine whether the grand jury was making the investigation mentioned in the indictment, namely, the alleged assault by Murray Jackson and others upon R. W. Burleson, as charged in the indictment, which is set out in the original opinion in this case. Appellant also claims that the omission of an instruction submitting to the jury as an issue of fact whether the grand jury had under investigation the matter mentioned above is such fault in the charge as to render imperative a reversal of the judgment of conviction. While the charge does not in specific terms instruct the jury to determine the question mentioned, considered in connection with the averments in the indictment which were before the jury, it might be plausibly contended that the jury could not fail to comprehend from the charge that before a conviction could result, they must determine that the alleged false testimony was elicited from the appellant before *Page 399 the grand jury in the course of its investigation of the alleged assault upon Burleson by the parties named in the indictment. It is difficult to perceive any process of reasoning by which the jury could have determined that the false testimony which the appellant is charged in the indictment to have given was material to the issue with respect to which it was made, without also determining whether the grand jury had under investigation the matter to which the testimony related. Of course, in response to the exceptions addressed to his charge, it would have been appropriate for the learned trial judge to have instructed the jury touching the necessity for proof and finding by them that the grand jury was investigating the offense alleged in the indictment. If it be conceded he did not and that the failure of the court to do so was error, the additional inquiry before this court of review is whether it is harmful to a degree which authorizes this court to set aside the conviction and order a new trial.
In an exceptionally well prepared argument portraying thought and research, counsel for the appellant asserts that in the particular mentioned the court's charge is faulty to the extent that it impinges the declaration in the Constitution that "the right of trial by jury shall remain inviolate" and offends against the statutory provisions wherein it is declared that "the jury, in all cases, are the exclusive judges of the facts proved and the weight to be given their testimony," and "the accused in a criminal case is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt." See Constitution of Texas, Art. 1, Sec. 15; Arts. 705, 706, C. C. P., 1925. Counsel disclaims the ability to point to a precedent in this state which definitely supports their position, but does refer the court to the case of People v. Walker, 198 N.Y. 329, 91 N.E. 806.
In the present instance the evidence heard upon the trial before the jury is conclusive and uncontroverted to the effect that the assault upon Burleson at the time and place and by the parties named in the indictment was the subject of investigation with reference to which the testimony of the appellant, set out in the indictment, was given before the grand jury. No attempt is made in the Constitution to define the right of trial by jury. It simply states that:
"The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency." (Article 1, Section 15.) *Page 400
The scope of the language of the Constitution is treated in this and all other jurisdictions as a matter in a great degree under legislative control. The right itself, of course, implies limitations upon the legislative authority. In the Magna Charta it is written:
"No freeman shall be hurt, in either his person or property unless by lawful judgment of his peers or equals, or by the law of the land."
Such is the right, we understand, to which the Federal and State Constitutions refer. See Ruling Case Law, Vol. 16, p. 182, Sec. 3. In its application to trials, there is a great variety of practice in the courts of the various states and in the Federal courts. It is believed that in all of them the right of trial by jury implies that the judge may not determine the guilt of the accused of crime, may not draw inferences from proven facts susceptible of different interpretations, and may not determine which of the conflicting testimony is true. For a general discussion of the subject, see Ruling Case Law, Vol. 16, p. 186, Sec. 6. Nothing in the Constitution will be found which expressly controls the judge's instruction except that it must not violate the right of trial by jury. In obedience to Art. 1, Sec. 15 of the Constitution, supra, the Legislature has, from time to time, passed laws governing the court's instructions to the jury in criminal cases. These are embraced in Arts. 658 to 666, inclusive, C. C. P., 1925.
From Art. 658, we quote:
"In each felony case the judge shall, before the argument begins, deliver to the jury a written charge, distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury."
In Art. 666 it is said:
"Whenever it appears by the record in any criminal action upon appeal that any requirement of the eight preceding articles has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial."
Statutes embracing the principles underlying Art. 666, C. C. P., have existed in this state from the beginning of its jurisprudence. See old code, Art. 602 (Arts. 743, and 723, later codes). That in its enactment and enforcement the Legislature did not transcend its power or impinge upon the right of trial by jury *Page 401 has not heretofore been denied. On the contrary, the soundness of the article has been given judicial sanction by the courts of last resort in this state in practically innumerable instances. In its present form, the article of the statute mentioned has been upheld and applied in hundreds of cases involving life and liberty. See Vernon's Tex.Crim. Stats., 1916, Vol. 2, p. 502. There is no command in the Constitution that the trial judge shall instruct the jury in any particular form, or in that matter, to instruct them at all. The demand for, and the requisites of, a charge to the jury come from legislative enactments. One of these forbids the comment upon the weight of the evidence. The privilege of appeal is likewise statutory. Ex Parte Bennett, 85 Tex.Crim. Rep.; De Silva v. State, 98 Tex.Crim. Rep.; Powell v. State, 99 Tex. Crim. 276. It is conceived that the purpose of the articles of the statutes pertaining to the charge of the jury enacted in obedience to Sec. 15, Art. 1, of the Constitution, express the legislative view touching the laws "needed to regulate a trial by jury and to maintain its purity and efficiency." The maintenance of the appellate court and the right of appeal in criminal cases are to prevent injustice, that is, to prevent the infliction of punishment in a trial in which the rights guaranteed in the Constitution have been ignored or transgressed. If Art. 666 is valid, its effect is to associate the privilege of appeal conferred upon one accused of crime, with the condition that the verdict of the jury shall not be overturned on appeal, because of an omission in the instruction to the jury which did not injure the accused or impair his right to a fair and impartial trial. The statute mentioned, being one of those enacted by the Legislature to regulate the right of trial by jury and to "maintain its purity and efficiency," unless invalid, is binding upon the courts. If valid, its meaning is clear. It forbids the court, on appeal, to set aside a verdict of the jury which has the sanction of the trial court because of an error in the charge which could not and did not harm the accused. Many citations of precedents upholding the statute in question are collated in Vernon's Ann. Texas C. C. P., 1925, Vol. 2, p. 293; and in some of the cases the facts, so far as they pertain to the legal questions, seem difficult to distinguish from those presented by the present record. In Brown v. State, 42 Tex.Crim. Rep., the accusation was an assault upon an officer. The evidence was to the effect that an officer had been appointed a deputy sheriff but had not taken the constitutional oath. The court said:
The facts constituting him a de facto officer were not controverted. *Page 402 Could the court assume that he was such officer, or was it necessary that this question should have been submitted to the jury?"
The court held that the injured party being an officer, the trial court did not violate that provision of the statute which inhibits a charge upon the weight of the evidence. The same ruling was made upon like facts by this court in the case of Pitts v. State, 97 Tex.Crim. Rep.; and the same principle was applied in Randolph v. State, 101 Tex.Crim. Rep., and Sawyer v. State, 104 Tex.Crim. Rep..
In Robertson's case, 68 Tex.Crim. Rep., the conviction was for perjury. According to the averments in the indictment, the grand jury, regularly constituted, had under investigation the gift of intoxicating liquor to Paul Garvin, a minor. On the trial the proof was uncontroverted that Paul Garvin was a minor. On appeal the complaint was that the court omitted to charge the jury on the issue of the minority of Paul Garvin, that is, that the question whether Paul Garvin was a minor was not submitted to the jury. The court held that the evidence of minority being positive and uncontroverted, Art. 743, C. C. P., forbids a reversal upon the ground of the fault in the charge.
In Nelson's case, 35 Tex.Crim. Rep., the conviction was for felony theft. A reversal was sought because the court had neglected to call upon the jury to determine the value of the property. The opinion of this court was written by Judge Davidson, from which we take the following quotation:
"There was no question of this fact. When the facts are admitted to be true, or are placed beyond without contest, we can see no reason why the court may not so assume, without infringing the rule inhibiting a charge upon the weight of the evidence. But this would not be so if there was an issue as to any such fact, and the court must then refrain from the assumption. To illustrate, on a trial for homicide, where it is proved by both sides, or it is not controverted, that deceased was killed, but the issue is as to the degree of culpability or identity of the slayer, it would not constitute a charge on the weight of the evidence for the court to assume the death of the deceased; but it would be if the court assumed the identity of the accused, or any degree of his culpability, as the issue might be, the plea on the trial being not guilty. The charge as given is not upon the weight of the evidence, under the facts of this case. Elizando v. State, 31 Tex.Crim. Rep.."
Analogous expressions are found in the opinion of this court by Judge Ramsey in Puryear v. State, 56 Tex.Crim. Rep., *Page 403 and those of Judge Davidson in Thomas v. State, 71 Tex. Crim. 185; and McDowell v. State, 55 Tex.Crim. Rep.; and the opinion of the court in Crutchfield v. State, 68 Tex. Crim. 468. That it has been the opinion of this court throughout its history that the statute mentioned does not offend against the fundamental law is furnished additional illustration in the great number of cases in which that part of Art. 666, C. C. P., stating "all objections to the charge and to the refusal or modification of special charges shall be made at the time of the trial," has been given effect to waive by the accused an error in the charge against which there was addressed no written exception before the charge was read to the jury as required by Art. 659, C. C. P., 1925.
With the utmost deference to the contrary view of counsel for the appellant, we are unable to perceive aught in the fundamental or statutory law opposing the operation of the statute (Art. 666, supra) upon the case in hand.
It was conclusively shown, without conflict of evidence, that the grand jury was investigating the offense named in the indictment. The real question to which the minds of the jury were centered was whether the testimony imputed to the appellant was given, whether it was material, and whether it was false.
Upon all other matters of evidence the jury received instructions and determined all issues of fact upon which minds might differ in favor of the state. That in taking the testimony of the appellant the grand jury was investigating the alleged assault upon Burleson was proved without conflict of evidence. It was not an issue but a proven fact. The failure of the court to tell the jury in his charge that they must determine whether or not the Burleson assault was under investigation by the grand jury could not and did not harm the appellant or prejudice his case. To the minds of this court, the omission was one clearly within the scope of Art. 666, supra, forbidding this court to reverse the judgment for an omission in the charge not calculated to injure the accused.
Of the other matters to which reference is made in the motion, no comment further than that made in the original opinion is deemed necessary.
The motion is overruled.
Overruled. *Page 404