text:
    HUNT et al. v. JOHNSON et al.
    (No. 2380.)
    (Supreme Court of Texas.
    Dec. 23, 1914.)
    1. Action (§ 50) — Joindee.
    Persons having no common or joint interest in property damaged by a nuisance may not unite in a suit for damages therefor.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 511-547; Dec. Dig. § 50.]
    2. Appeal and Ebbok (§ 61) — Jurisdiction —Amount in Conteoveest.
    The improper uniting of two separate causes does not give the Supreme Court jurisdiction on writ of error, where it has no jurisdiction of either case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 276-292; Dec. Dig. § 61.]
    3. Courts (§ 24) — Jurisdiction—Want of J urisdictio n — Waiver .
    Want of jurisdiction of the subject-matter cannot be waived by the parties nor disregarded by the court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 76-78; Dec. Dig. § 24.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by S. R. Johnson and another against Hugh Hunt and another. There was a judgment of the Court of Civil Appeals (141 S. W. 1060), affirming a judgment for plaintiffs, and defendants bring error.
    Dismissed for want of jurisdiction.
    Stephens & Miller, of Ft. Worth, and W. Poindexter and S. C. Padelford, both of Cle-burne, for plaintiffs in error. Phillips & Bledsoe and F. E. Johnson, all of Cleburne, for defendants in error.

      Ror other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   BROWN, C.

J. Hugh Hunt and Winfield Scott erected a gin in the city of Cleburne, near to the residences of S. B. Johnson and B. J. Copeland, who resided on separate lots; neither being interested in the property of the other. It was claimed in the petition that Hunt and Scott so located .their gin house, and so operated the gin as to cause the property of Johnson and Copeland each to deteriorate in value the sum of $750 each. It is not claimed that the plaintiffs are joint owners of the property injured, nor that either was interested in the damages sought to be recovered for injury done to the property of the other. The plaintiffs in error made their objection to the joinder of the actions in tlie district court, but tbey make no objection bere.

Parties cannot join in an action to recover separate and distinct parcels of land or damages thereto in which they have no common or joint interest, and the objection of the defendants should have been sustained by the district court. Curry v. York, 3 Tex. 359; Allen v. Road, 66 Tex. 21, 17 S. W. 117. In the case last cited the court said:

“In view of the disposition that will be made of the case, it is unnecessary to consider the sufficiency of the evidence to support the claims of Mrs. Thompson, Mrs. Jeífus, and R. N. Read, under the statutes of limitation. As each of the plaintiffs claim separate parts of the league of land in controversy, the action by them all is irregular, and had objections been made, at proper time, and in proper manner, to the maintenance of this joint action, they should have been sustained; but this was not done, and as this relates to the procedure, and not to the rights, of the several parties, the objection cannot be made in this court.”

If each plaintiff had instituted a separate suit in the county court or in the district court, this court would have no jurisdiction of either case. The uniting of two separate cases does not constitute one case, and, as this court has no jurisdiction of either ease, it cannot have jurisdiction of two, when improperly joined. Upon'the face of the proceeding, the question of jurisdiction of the subject-matter arises without objection by either party.

Such want of jurisdiction of the subject-matter cannot be waived by the parties nor disregarded by this court.

It follows that this cause must be dismiss■ed for want of jurisdiction.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    NESBITT v. STATE.
    (No. 3351.)
    (Court of Criminal Appeals of Texas.
    Dec. 16, 1914.)
    1. Criminal Law (§ 479) — Evidence—Admissibility.
    Where medical experts examined the wounds of the prosecuting witness, they are entitled to testify that, from their experience and observation as physicians, the weapon used was calculated to produce death or serious bodily injury, though they did not see the weapon.
    [Ed. Note. — For other cases, see .Criminal Law, Cent. Dig. §§ 1067, 1068; Dec. Dig. § 479.]
    2. Homicide (§ 300*) — Self-Defense — Instructions.
    In a prosecution for assault with intent to murder, where accused claimed that he acted in self-defense, believing he was in imminent danger, but there was no evidence of any threats before the altercation which led to the, assault, a charge that, if the words or acts of the prosecuting witness created in the mind of accused reasonable apprehension of imminent danger, then he had the right to defend himself in such a manner as seemed reasonably necessary, and that he was not bound to retreat to avoid the necessity of assaulting his assailant, is a sufficient presentation of the right of self-defense as raised by the evidence, which only showed that the prosecuting witness got down from his
    wagon and reached towards his pocket, where accused believed he had a knife.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    Appeal from District Court, Knox County; Joe A. P. Dickson, Judge.
    Frank Nesbitt was convicted of aggravated assault, and be appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series Si Rep’r Indexes

   HARPER, J.

Appellant was prosecuted under an indictment charging him with assault to murder, and, when tried, was convicted of aggravated assault.

The evidence would show that trouble arose between appellant and the prosecuting witness, Bud Sessions, over some harness. Sessions had gone to the barn of appellant and took the harness during appellant’s absence, and they had some words about the matter over the telephone. On the day of the difficulty Sessions was at work on the same farm on which appellant rented land, and when he got through his work he drove across appellant’s wheat land in going to the home of Mr. Ludwick, for whom Sessions was at work, and on the way he went by the lot of appellant. The state’s contention is that, when Sessions got even with the lot, appellant approached his wagon and told Sessions he did not want him to come across his land, when Sessions replied he would be compelled to do so; that appellant then commenced cursing Sessions, and told him if he would get .out of the wagon he could and would whip him. As Sessions started to get out of the wagon, with his back to appellant, appellant struck him on the head with a stick or scantling, knocking him senseless.

Appellant’s version is as follows:

That when Sessions came by his lot he said to him: “ ‘There is a road plumb around this place,’ I says. T have forbid you twice before to come on this premises,’ and I was walking as I talked. I says, ‘There is a road plumb around this place, and I forbid you to come on these premises twice before.’ I says, T want you to get out in this road, and stay out.’ By that time I was even with him. I turned my back to walk in this gate, and he stopped his team and commenced getting out of the wagon. He got over the front wheel of the wagon. When he stopped his team, he wound his lines up on the front stub of the wagon, and commenced to get out of the wagon. It was turned in a northwest direction. I was going in this lot to feed my hog. He says, T will get off of this place when I get ready, and I will come back when I get ready, just to show you I am not afraid.’ When he did that I turned around — went back towards him. When he come off of the wagon, he run his left hand in his pocket first; then his right hand. Then I seen this stick, and grabbed it, and got to him as quick as I could. If I had not seen the stick, I would have run. I was sure he had a knife, because he had been heading maize. I hit him on the head with the stick.”

Dr. W. M. Taylor testified:

“Mr. Sessions, Dr. Heard, and Mrs. Sessions went with me out to him. When we got there we took Mm out of the wagon, and Mr. Sessions stayed on the back seat of the car and held him until we got to Goree. When I found him he was in an unconscious condition, vomiting some. I did not make a thorough examination of him then. We carried him home just as soon as we could. Afterwards I made an examination of him, and Dr. Heard assisted me; we made the examination as soon as we got him home and got him in bed and cleaned up as much as we could. We found two cut places on his head. We clipped his hair from around those places, washed them, sewed them up, took two stitches in one and one in the other. We found those wounds here (indicating) on the left side between the frontal bone and the parietal, on the left side of the head across this way (indicating) ; it was á little jag there. We found one here on top across that way (indicating); this was cut through the scalp; upper margin of the wound extended out to a scratch lower part. We took one stitch in the upper part of this wound (indicating). This side of the head (indicating) was bruised. We did not do any more than we had to that night, and awaited developments. The next morning, on this side of the head, the part of the scalp over the right parietal bone come down to the occipital septa, just a little over the center of what we call the parietal septa junction, between the two parietal bones. This swelling extended around this line. You can see where I shaved his head there around this way (indicating), something like. Then there was a fluctuating mass here, in around on the frontal bohe, to the right of the center; one corresponding on the opposite side — a long fluctuating mass. These bruises I have testified about, they were separate and distinct from each other. I clipped his hair Sunday, so I could tell more about these places. I kept his head wrapped in hot cloths until Monday, to see if 1 could reduce some of the swelling; but the swelling increased, instead of going down. I wanted to make out as near as I could the nature of the mass, so I used an asperating needle on this mass here. I run the needle inside, drawed it out, and it was pure blood. I took about two ounces out of that wound; that was just a fluctuating mass. I did not open this over here (indicating) until the following day. He complained a good deal of his eyes, could not bear the light, so I opened these two in front, and that relieved the eyestrain. I took about an ounce each out of the two wounds in front. I opened those up every day. I opened them one day, and they would fill up by the next. In my opinion, there was at least three distinct wounds upon his head that gave the trouble; there was two cut places on his head, one here and one here (indicating). This mass here (indicating), that contained the fluid beneath, come up to a line of this wound here. I tried to drain it through this, and could not, so I had to cut an opening here (indicating). I drained the one on top through this wound (indicating), but I run my knife under there, and run it about two inches towards the mass here; drained some from there, rather than to cut longer places. The wound and bruise I have described there on the back of his head, on the right, in my opinion, I do not think a man could stand in front of him and have inflicted that wound with a stick; he would have had to have been to the side of him or to the back. From the examination of the wounds upon the head of the person, and from my experience and observation as a physician and surgeon, I would say that the weapon used in the inflicting of the wounds, from the mode and manner of its use, was a weapon calculated and likely to produce death or serious bodily injury, in my opinion. I considered the wounds upon Bud Sessions’ head serious wounds.”

It is shown that Sessions remained unconscious for several days.

Dr. Heard’s testimony was, in substance, the same as Dr. Taylor’s. Two bills of exception were reserved to a portion of Dr. Heard’s and Dr. Taylor’s testimony; that portion wherein they were permitted to testify that from an examination of the wounds upon the head and from their experience and observation as physicians and surgeons the weapon used, in inflicting the wounds, from the mode and manner of its use, was a weapon calculated to and likely to produce death or serious bodily injury. While- the evidence does not disclose they ever saw the weapon used, yet they did see and examine the wounds inflicted, and, under the circumstances shown by this record, we do not think there was any error in permitting them to so testify. Waite v. State, 13 Tex. App. 180; Banks v. State, 13 Tex. App. 182; Powell v. State, 13 Tex. App. 244; Henry v. State, 49 S. W. 97; Sebastian v. State, 41 Tex. Cr. R. 250, 53 S. W. 875.

On the issue of self-defense, as made by the testimony offered in behalf of appellant, the court instructed the jury:

“Upon the law of self-defense you are instructed that if, from the acts of the said Bud Sessions, or from his words, coupled with his acts, there was created in the mind of the defendant a reasonable apprehension that he, the defendant, was in danger of losing his life or of suffering serious bodily injury at the hands of the said Bud Sessions, then the defendant had the right to defend himself from such danger or apparent danger as it reasonably appeared to him at the time, viewed from his standpoint. And a party so unlawfully attacked is not bound to retreat to avoid the necessity of assaulting his assailant. If you believe that the defendant committed the assault as a means of defense, believing at the time he did so, if he did do so, that he was in danger of losing his life or of serious bodily injury at the hands of said Bud Sessions, then you will acquit the defendant.”

In this record there is nothing to suggest prior threats or conduct on the part of Sessions that would cause appellant to believe he was in danger of death or serious bodily injury; his right to act in self-defense must be based on the acts and conduct of Sessions at that time. He admits he ordered Sessions to get off his land and stay off. He says Sessions replied he would not do so, and got out of his wagon and started towards him, running his hand in his pocket, and he believed he was going after a knife. He does not claim that Sessions drew a knife, but, as he (Sessions) had been cutting maize heads that evening, he knew he had a knife, and he believed when he ran his hand in his pocket that it was his purpose to draw a knife and use it on him, when he struck with a stick, knocking Sessions senseless. The sole question is: Did the above paragraph of the charge sufficiently present this defense? We are inclined to think it does do so, and there was no reversible error in refusing the special charge requested on that issue.

The judgment is affirmed.


text:
    RANOLS v. STATE.
    (No. 3356.)
    (Court of Criminal Appeals of Texas.
    Dec. 16, 1914.)
    1. Indictment and Information (§ 173*)— Name of Accused — 'Variance.
    In view of Code Cr. Proc. 1911, § 560, that if a person is indicted by the wrong name he can suggest that fact to the court, when his real name will be substituted, that one commonly known as “Ranols,” and indicted as such, was really named “Randall,” presented no variance.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 539; Dec.- Dig. § 173.*]
    2. Criminal Law (§ 815*) — Trial—Submission of Defensive Issue.
    In a prosecution for unlawfully carrying a pistol, where defendant denied any admission that he had fired a pistol, and testified that he stood in the door of his boarding car and fired a pistol after another shooting had taken place, the evidence presented a defensive issue, the refusal to submit which to the jury was error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1922, 1986; Dec. Dig. § 815.*]
    Appeal from Sabine County Court; J. B. Lewis, Judge.
    Deary Ranols was convicted of unlawfully carrying a pistol, and lie appeals.
    Reversed and remanded.
    W. R. Cousins, of Hemphill, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted1 of unlawfully carrying a pistol, and prosecutes this appeal.

One complaint made is that appellant’s real name is “Randall,” and not “Ranols.” Our Code (section 560) provides that, if a person is indicted by the wrong name, he can suggest that fact to the court, when his real name will be, substituted. Appellant was commonly known as “Ranols,” and the fact that his real name was “Randall” presents no variance.

There are a number of bills of exception in the record, but only one of them presents error, and we do not deem it necessary to discuss the others. The state’s evidence would show that the officers heard and saw a pistol being fired; that four men were in the crowd, and they ran to the railway camp; that appellant afterwards admitted to the officers that he was the man who fired the pistol.

On the trial of the case defendant testified in his own behalf and denied making the confession or admission testified to by the officers. lie says he was not one of the four men who fired the pistol and whom the officers saw running; that he was in his camp, and when he heard the shooting he ran to his door, and did 'not go out of his door, but says he stood in his door and fired his pistol after the other shooting had - taken place. With the evidence in this condition, he requested the court to instruct the jury:

“In this case the defendant has testified that he did have a pistol, and that he shot the same on the steps of the boarding car where he was living, and that he did not have a pistol at any other place. You are charged that if you believe he did have a pistol, but that he did not carry it away from the boarding cars, then he would not be guilty of the offense charged, and the burden of proof is on the state to prove beyond a reasonable doubt that defendant’s explanation is false, and, unless it does so prove, you will acquit the defendant.”

This presented, his defensive theory, and the court should have submitted that issue to the jury. The defendant excepted to the failure of the court to give this charge, and the failure to present his defensive issue in the charge as given. Under our law, where the evidence offered in behalf of a defendant presents a defensive issue, he is entitled to have it submitted to the jury.

The judgment is reversed and the cause remanded.


author: HARPER, J. DAVIDSON, J.

text:
    JOHNSON v. STATE.
    (No. 3357.)
    (Court of Criminal Appeals of Texas.
    Dec. 16, 1914.
    Dissenting Opinion Jan. 9, 1915.)
    Criminal Law (§ 1055) — Appeai>-Review— Misconduct of Counsel — Questions not Raised at Trial. ,
    Accused cannot object on appeal to allege misconduct of the district attorney in argument where no exception was reserved thereto at the time, or application made to the court to correct the error either by instruction or by granting-accused a venire de novo, and this though the misconduct was such that it could not be cured by instruction.
    [Ed. Note. — For other cases, see Criminal Law,'Cent. Dig. §§ 2666, 2667; Dec. Dig. § 1055.]
    Davidson, J., dissenting.
    Appeal from District Court, Wichita County; E. W. Nicholson, Special Judge.
    Alvin Johnson was convicted of robbery, and he appeals.
    Affirmed.
    T. R. Boone, of Wichita Falls, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was convicted of robbery, and his punishment assessed at five years’ confinement in the state penitentiary.

In this case the evidence would show tha,t one Travis Keys robbed Frank Morgan of $75, and the state relied on circumstantial evidence to connect appellant with the transaction as a principal. The court, among other things, instructed the jury:

“Before you can convict the defendant, Alvin Johnson, in this case you must believe beyond a reasonable doubt that Travis Keys actually committed the offense of robbery as defined above, and as charged in the fourth paragraph of this charge, and you must further believe beyond a reasonable doubt that the defendant, Alvin Johnson, was present at the time of the commission of said offense, and, knowing the unlawful intent, aided said Travis Keys by acts, or encouraged him by words or gestures, in the commission of said offense, or that said Alvin Johnson, prior to the commission of said offense, had advised and agreed with the said Travis Keys to the commission thereof, and had done some act pursuant to said agreement, and that he was actually present at the time said offense was committed.”

The court also in his charge properly instructed the jury as to who are principals in the commission of an offense, and instructed the jury the law governing a case depending on circumstantial evidence in a way not complained of hy appellant, and in language frequently approved by this court. Branch’s Orim. Law, § 204, and authorities there cited. In this case we cannot hold, as a matter of law, that the facts and circumstances shown by the evidence were insufficient to authorize the jury to find that appellant was acting with Keys in the commission of the offense, if an offense was committed by Keys, and this the jury found to be a fact. While this is a companion case to that of Travis Keys v. State, 60 Tex. Cr. it. 279, 131 S. W. 1068, on this trial there was no evidence offered tending to show that the money was won from the prosecuting witness in a gambling game, as was done in that case, and yet the court held in that case that the evidence was sufficient to support a conviction for robbery, and in this case (without the evidence as to gambling) we could hardly be expected to hold that the evidence was insufficient to sustain a conviction for robbery.

The only other question presented in the record that it is necessary to discuss is presented in three bills of exception reserved after verdict and after the motion for new trial had been overruled, all relating to the same matter. In these bills it is claimed the prosecuting attorney used the following language:

‘‘It is in the power of the defendant to show what manner of man he is; the state cannot show it; the law does not permit it. It is Within the mouth of the defendant to tell what kind of a man he is, and I would like to know what kind of a man I am prosecuting, and you would like to know what kind of a man you are setting in judgment on.”

In the bills of exception it is shown by the allegations of appellant that when the language was used, if used, no exception was reserved to the argument, but it is admitted that the first time it was complained of was in the amended motion for new trial, filed the 8th day of August, eight days after the verdict had been rendered and judgment entered thereon. Appellant contends that this was a direct allusion to defendant’s failure to testify, and, although it was not excepted to during the trial of the case, it was a plain violation of article 790 of the Code of Criminal Procedure, which provides that a defendant may be permitted to testify in his own behalf, but his failure to testify shall not be considered as a circumstance against him, nor shall the same be commented on or alluded to by counsel in their argument; and he also contends that the error may be assigned for the first time after verdict in the motion for new trial. This contention we think contrary, not only to the trend of decisions of this court, but contrary to the provisions of' the Code of Criminal Procedure. It has always been the rule in this court that evidence admitted on th > trial, no matter how hurtful or harmful, if unobjected to during the trial of the case, and complained of for the first time after verdict in the motion for new trial, comes too late and presents no ground for reversal of the case, although, if objected to at the time it was offered during the trial, it would have presented ground for reversal. Wright v. State, 35 Tex. Cr. R. 368, 33 S. W. 973, Gonzalez v. State, 39 Tex. App. 203, 16 S. W. 978, Simon v. State, 31 Tex. Cr. R. 204, 20 S. W. 399, 716, 37 Am. St. Rep. 802, and cases cited under subdivision 1, § 1123, White’s Ann. Code of Criminal Procedure, where the rule is stated to be:

“A party cannot be heard to complain of illegal and incompetent evidence to which he did not object * * * at the time of its introduction.”

The law in these instances says certain testimony is inadmissible, yet, if not objected to when offered, it is too late to complain of the matter after the trial is completed and verdict rendered.

It was formerly the rule in this state that objections to the charge of the court and errors pointed out therein for the first time in the motion for a new trial could be considered by this court, but the Legislature deemed this rule inadvisable, and changed it by specific legislative enactment. In chapter 138 of the Acts of the Regular Session-of the Thirty-Third Legislature (page 278, Session Acts) it is provided that, if the charge is erroneous, the judgment shall not be reversed, unless the error was pointed out before the charge was read to the jury. And, so urgent did they deem this matter, the law declares:

“The fact that there are many reversals in criminal cases caused by errors in the charge of the court due to the fact that such errors were not pointed out to the trial judge before the charge was given * * * creates an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days be suspended, and that this act be in effect from and after its passage and it is so enacted.”

Thus it is made plain that, if we follow the plain spirit, intent, and language of our Code of Criminal Procedure, if error be committed in the trial of the case, such terror must be excepted to at the time of and during the trial, or we must not consider such matters on appeal. It was the evident intent and purpose of the Legislature to provide that any error committed during the trial of a case must be excepted to at that time to give the trial court a chance to correct its error, or the matter will be considered as waived, and this court shall not reverse a case on account' of any error that appellant did not consider of sufficient importance to complain of during tlie trial. As to the wisdom of this rule, or its fairness and justness, we do not feel called upon to express an opinion. If it is deemed hurtful and harmful, inequitable and unjust, an appeal should be made to the lawmaking body — the Legislature — to change it, and the appeal should not be made to us to annul its provisions. However, appellant contends that the use of such language by the prosecuting attorney was such an error that, if the court’s attention had been called to it by reserving an exception at the time, it was such an error that the court could not have remedied; therefore it was not necessary to except to it at the time, but it could be complained of for the first time after verdict in the motion for a new trial. It has been held in this state, and in Illinois, Indiana, and Mississippi, that if counsel for the state refers to the defendant’s failure to testify, the withdrawal of the obnoxious remarks and the instructions of the court to disregard them will not cure the error. To this rule, if an open question, the writer would not give his assent, for the great weight of authority is against such rule. In the Encyclopedia of Pleading and Practice, vol. 2, p. 724, it is said:

“The weight of authority fairly sustains the proposition that the court may repair the injury by excluding the comments and properly admonishing the jury” — citing State v. Chisnell, 36 W. Va. 659, 15 S. E. 412; Com. v. Harlow, 110 Mass. 411; State v. Graham, 62 Iowa, 108, 17 N. W. 192; Calkins v. State, 18 Ohio St. 366, 98 Am. Dec. 121; People v. Hess, 85 Mich. 128, 48 N. W. 181; People v. Rose, 52 Hun, 33, 4 N. Y. Supp. 737; Ruloff v. People, 45 N. Y. 213, which is referred to as a leading case.

In the American and English Encyclopedia of Law and Practice, vol. 5, p. 340, it is said that:

“In some jurisdictions it is held that, where unwarranted and prejudicial comment is made upon the prisoner’s neglect to testify, the proceedings thereby become so fatally infected that a withdrawal of the obnoxious remarks and instructions of the court to the jury to disregard them cannot be held to neutralize their pernicious effect. But the weight of authority fairly sustains the proposition that the court may repair the injury by excluding the comments and properly admonishing the jury” — citing Dimmick v. United States, 121 Fed. 638, 57 C. C. A. 664; Wright v. United States, 108 Fed. 805, 48 C. C. A. 37; Lee v. State, 73 Ark. 148, 83 S. W. 916; State v. Buxton, 79 Conn. 477, 65 Atl. 957; Robinson v. State, 82 Ga. 535, 9 S. E. 528; United States v. Kuntze, 2 Idaho (Hasb.) 480, 21 Pac. 407; Barnes v. Commonwealth, 101 Ky. 556, 41 S. W. 772; People v. Hess, 85 Mich. 128, 48 N. W. 181; State v. Kelleher, 201 Mo. 614, 100 S. W. 470; People v. Hoch, 150 N. Y. 291, 44 N. E. 976; Williams v. State, 30 Ohio Cir. Ct. R. 342; State v. Harrison, 145 N. C. 408, 59 S. E. 867; State v. Howard, 35 S. C. 197, 14 S. E. 481; State v. Young, 74 Vt. 478, 52 Atl. 1047; Dunn v. State, 118 Wis. 52, 94 N. W. 646; Price v. Com., 77 Va. 393.

Many other cases could be cited sustaining the rule that, if the court properly reprimands counsel and instructs the jury that they must not consider such comment, it will not be ground for reversal of the case, but as this court has adhered to the rule that such instructions will not cure the error, we would not be willing to overrule this unbroken line of decisions where the remarks were objected to and excepted to at the time they were uttered and while the trial was still in progress. Appellant cites us cases rendered by this court sustaining that rule, but in each and every case cited by appellant the remarks were objected to and exception reserved at the time they were uttered and while the case was still on trial. In none of them was ¿he exception reserved and objection made for the first time after verdict in the motion for new trial.

But what is the reason for the rule that the objection must be made and exception reserved at the time the argument is made, and during the progress of the trial ? Appellant’s able counsel insist and urge that there is no sound reason for such rule; that, as this court has held that the court cannot cure the error by withdrawal of the remarks and the court instructing the jury not to consider them, there is no reason why the objection cannot be made after verdict in the motion for new trial as well as during the trial and at the time the argument is made. At first blush, the reasoning of appellant’s counsel would appear sound, but in Texas and those states which hold that a reference to defendant’s failure to testify is an incurable error it is also held that, in case of such improper remarks, the proper practice is to except to the remarks, and request the court to discharge the jury from a further consideration of the case. In the case of Coffman v. State, 165 S. W. 945, this court held, where the witness Miss Lizzie Barnes had testified that she hád “testified on the former trial, when the defendant got the death sentence,” that, as the trial court at the tizne when the. exception was reserved offered appellant the privilege of withdrawing the case from the jury, and to discharge the jury from a further consideration of the case, which offer appellant’s counsel refused to accept, that the bill did not present reversible error. Our Code provides that the result of the former trial shall not be referred to, as it also provides that the failure of the defendant to testify shall not be alluded to. And when ei-, ther of these events happen, it is proper for the court to allow the defendant to have the case withdrawn from the jury, the jury discharged, and a new jury impaneled to try the case. But if appellant and his counsel, knowing that such error has been committed, proceed with the trial without objection, take chances on a verdict of acquittal, and, in case it results adversely to them, then seek to raise such objection, it comes too late. The courts cannot be trifled with, and their time occupied, and the necessary expense incurred to no good purpose. If one on trial thinks irreparable injury has been done him, and he cannot by reason thereof secure fair consideration at the hands of the jury, he should promptly object and ask that the jury be discharged, and, if such request is not complied with, it will be our duty and our pleas/-ure, if the remarks are such that may have been harmful to him, to see that he gets another trial before a jury uninfluenced by such improper conduct. But we cannot sanction the practice of appellant and his counsel, sitting idly by, without calling the attention of the trial court to what to them seems hurtful and damaging argument, speculating on the result and taking chance^ on acquittal, with the intention, if the trial results adversely to them, to seek to have the verdict set aside on account of'a matter of which they were aware, but did not complain of when it occurred. This, to our minds, is not dealing fairly with the trial court, and is not in accordance with that well-known rule of law that he who seeks relief in the courts of his country must do so with clean hands. We do not wish to be understood as censuring counsel for appellant for raising this question. The attorney who now represents appellant, and who presented the bill of exceptions for approval, was not of counsel for appellant on the trial of the case, but was called into the case after verdict, and he is not to be censured nor blamed, but commended, for raising every question which he thought might prove advantageous to his client, but he in the bill admits, and in his argument before this court admits, that at the time the remarks of state’s counsel were made no objection was made to such argument, and no exceptions attempted to be reserved until after the verdict was rendered, and it is our opinion that it was then too late to-complain.

We have written at length on the bills as if they were properly verified and certified to by the trial judge. In the writer’s opinion, however, the bills are not verified in a way which would authorize us to conclude from them alone that the district attorney used the remarks complained of. The bills are approved with the qualification that, if the language imputed to him was used by the district attorney, the court did not hear it; that, if such remarks were used, they were not excepted to, and his attention was not called to it until such language was assigned as error in the motion for new trial. Counsel for appellant admits that no exception was reserved, and the first time the language was complained of was in the motion for new trial. The allegation in the motion for new trial does not verify the fact that the language was used, and the court, in our opinion, does not do so in acting on the bill; for he says, if such language was used, he did not hear it. However, we have treated the matter as though it was properly verified, and hold that it was too late after verdict to reserve an exception to the remarks used on the trial of the ease, and that, when no such exception is reserved at that time, the matter will be considered as waived.

The. judgment is affirmed.

DAVIDSON, J., dissents.

DAVIDSON, J.

Briefly I desire to state some of the reasons why I cannot agree to the affirmance of this judgment. The language of the prosecuting attorney, which is sufficiently set out in the majority opinion without restating it, was clearly an allusion, to, and comment on, the failure of the defendant to testify. This is conceded by the majority opinion, hut it is stated that, because appellant did not object at the time to the argument and ask an instruction to the jury not to consider it, and further did not ask the court then to withdraw the case from the jury and continue it, he waived his rights, and the error was not available. This proposition, to say the least of it, is more than novel. The decisions in this state, in an unbroken array, hold it error for the prosecution to allude to the fact that defendant did not testify, and always reversible error, although the court may charge the jury to disregard such argument and admonish the attorney against such conduct. If there is an authority which holds the other way in Texas, it has escaped my attention. These cases, without being here enumerated, may be found collated in section 849 of Mr. Branch’s Crim. Law. If a charge to the jury withdrawing the remarks could not cure the error, I do not understand how an exception would be of any service. It is more than a novel proposition that a defendant, in order to take advantage of such error, must not only except at the time, but must also move the court to withdraw the case from the jury and continue it or organize another jury to try the accused. This proposition is evidently not the conclusion of serious reflection. If this is to be the law and practice, it would follow that, when reversible error is committed, it would be obligatory upon the defendant to ask a withdrawal of the case from the jury and put him on trial before another jury; otherwise he waives a legal trial. My Brethren place this on the statement that it is unfair to the court to do otherwise. Pair trial is due the accused, not the court or district attorney. They are not on trial. It has always been thought the law heretofore that, when an error is committed against the accused, he can avail himself' of it in any legitimate manner. The state cannot take advantage of its own wrong conduct. Under this novel ruling an appellant would never be entitled to a reversal, however erroneous the ruling, unless he should not only except, but ask the court to withdraw the case from the jury at the time of the commission of the alleged error. This ought not to be asserted or entertained seriously. He is not required to ask a continuance for this reason, nor move for a new trial until after the verdict has been rendered adversely to him.

My Brethren announce another proposition still more novel. In addition to what was said by them in regard to the other questions, they say:

“But we cannot sanction the practice of appellant and his counsel, sitting idly by, without calling the attention of the trial court to what to them seems hurtful and damaging argument, speculating on the result and taking chances on acquittal, with the intention, if the trial results adversely to them, to seek to have the verdict set aside on account of a matter of which they were aware, but did not complain of when it occurred. This, to our minds, is not dealing fairly with the trial court, and is not in accordance with that well-known rule of law that he who seeks relief in the courts of his country must do so with clean hands.”

It is for the first time, so far as I am aware, announced as a “well-known rule of law” that a party accused of crime must come into court “with clean hands” in order to have a fair trial, to be permitted to take advantage of erroneous rulings. It may be asked how a party charged with, and convicted of, robbery, the judgment affirmed, could come into court “with clean hands.” The machinery of the criminal law was set in operation by the state. The felonious charge is that he was without “clean hands”; that he was a violator of the law; had robbed his fellow man of property by the use of force, violence, or deadly weapon; and yet, in order to urge an exception to what is an illegal proceeding, he must come into court “with clean hands.” I have been taught from the time I studied equity jurisprudence that there is a rule of equity, not criminal law, the substance of which is that he who seeks equity must come into court with clean hands or do equity. In that instance the plaintiff or complaining party is seeking equity in a civil matter. It cannot be a criminal prosecution. The rules of equity are resorted to in civil matters when the law has failed of remedies. It is fundamental that a criminal prosecution is not an equity case. The accused is brought in court by the strong arm of criminal process and required to answer a charge of robbery, and it is evident from the fight before the jury for his life and liberty and his appeal to this court that he was entering his most solemn protest against the whole proceeding. The affirmance was over his most serious objection. He not only did not come into court, but protested most seriously against being brought. When he .declined to exercise his privilege of testifying, and that fact was commented upon before the jury by adverse counsel, it was incurable error, but we are told that he must not only engage in the fruitless task of asking a withdrawal of the remarks and the case from the jury, but he must come into court “with clean hands,” before he could even do those things, and, not having done so, he must go to the penitentiary under the rules of equity, upon the theory he had invoked the chancery powers of the court. He not only remained silent, but protested against interference with that silence. The Constitution guaranteed him this right. The statute which permits him to testify reserves to him this right. He exercised that right and did remain silent, and, because he did remain silent and failed to ask the court to withdraw the case, he did not come into court “with clean hands.” For this reason he has been adjudged to have lost the guaranteed protection of the Constitution and the strict reservation of his rights in the statute to remain silent or testify at his opinion, and waived himself into the penitentiary. Like the sheep before his shearers, he was dumb, he opened not his mouth, and because of this silence he has forfeited his right to have his case considered under the Constitution and laws of the state, as he was entitled. He is compelled to sit “idly” or otherwise and listen at his trial. He must take the chances of acquittal, has no option, and cannot avoid it. If he is convicted heretofore, he could urge legal errors. He has not heretofore been required to move a continuance every time an error is made, nor required to move for a new trial until after he has been found guilty.-

There are other startling propositions in the opinion, but I do not care to follow the subject further.

I most respectfully enter my dissent.


author: DAVIDSON, J.

text:
    BYARS v. STATE.
    (No. 3345.)
    (Court of Criminal Appeals of Texas.
    Dec. 9, 1914.
    Rehearing Denied Jan. 6, 1915.)
    1. Cbiminal Law (§ 603)— Continuance— Application — Information and Belief.
    An application for continuance for absent witness, based on information and belief, and not stating and verifying the source of information, is insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1348-1361; Dee. Dig. § 603.]
    2. Criminal Law (§ 603) — Continuance-Absent Witness — Diligence.
    A motion for a continuance for absent witness, showing that a subpcena was issued on September 23d, returnable the 28th, which was returned not found, the time of return not being stated, and there being no showing in the return as to diligence, is insufficient to show diligence, though the trial was on the 29th.
    [Ed. Note. — For other cases, see Criminal Law, Cent. ' Dig. §§ 1348-1361; Dec. Dig. § 603.]
    Appeal from District Court, Colorado County ; M. Kennon, Judge.
    Andrew Byars was convicted of assault to murder, and he appeals.
    Affirmed.
    P. P. Putney, of Victoria, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, J.

Appellant was convicted of assault to murder; his punishment being assessed at two years’ confinement in the penitentiary.

The court refused appellant’s first application for a continuance, bas.ed on the absence of the witness Ned Morris. The application states that appellant expected to prove by the witness:

“As follows, to wit: That the said witness was an eyewitness to the shooting; that the said witness will testify, so defendant has been informed, that the assaulted party, Ben Ken-non, was the aggressor in the difficulty. That he made threatening remarks to the defendant, and was in a position and making gestures as if he meant to execute said threats, to do the defendant Andrew Byars serious bodily injury, before the defendant, Andrew Byars, shot him. That the said witness will testify further, so the defendant has been informed, that Ben Ken-non was advancing upon and towards the defendant in an angry manner, with his right hand in his pocket, and his left hand raised as if to ward off any blow which might' be given him by the defendant; and will testify further that defendant made no further attempt to shoot after Ben Kennon retreated.”

The bill of exceptions is approved with the statement:

“That the application for continuance does not show due diligence, and, in view of the motion for new trial to be heard, the undisputed evidence shows that the proposed testimony of the absent witness is contradicted by the physical fact of the bullet.”

It will be noticed that the facts expected to be proved are not stated, except upon information. Appellant nowhere in the application, nor attached.to it, shows or attempts to show from whom he received such information. If appellant had been informed that the absent witness would testify as indicated, his source of information should have been stated and verified. As to diligence, the application alleges that the absent witness resided in Colorado county, and that appellant thought his attorney of record appeared before the clerk of the court and made application for subpoena for the said witness Ned Morris, as the law requires to be done, on the 23d day of September, 1914, which application is here referred to and made a part of this application commanding the said witness Ned Morris to appear before the court on the 28th day of September, 1914, at 10 o’clock a. m., to testify in behalf of the defendant; that this subpoena was turned over to the sheriff of Colorado county, and was by him “returned into this court with the following return marked thereon, ‘Cannot be found.’ ” The indictment was returned into court on 19th of the month. Under this allegation the process was issued on 23d of September, returnable on 28th. The ease was tried on 29th of September. At what time the sheriff made the return is not stated; in fact, the above is the showing made on the face of the motion. We are of opinion this was not sufficient diligence. If the process had been returned on 24th, and the case set for the 28th, further steps would be necessary, and an attempt at diligence would have demanded that other process be issued at once. The sheriff’s return does not show what diligence was exercised on his part to secure the witness, but he simply returns the process, stating witness cannot be found. Appellant could have, ascertained from the sheriff any fact that he knew about the witness, if he knew anything, or had heard anything of his whereabouts, or could have had the return amended so as to indicate where the witness could be found if the sheriff knew anything of it. But none of this' was done. The bill was accepted by appellant as qualified by the court. If the physical facts were such that Kennon was not approaching appellant or was not doing what appellant said he was informed that Morris would testify, then his testimony would not be material. However, from any viewpoint, we are of opinion the diligence is not sufficient; nor is the statement with reference to the testimony expected to be shown so stated as to be positive in its character that Morris would swear to such facts; nor does he state the means of information upon which he predicates his statement.

The only other question presented in the motion is want of sufficient evidence to justify the verdict. The state’s evidence is amply sufficient to justify the verdict. It is unnecessary to repeat or discuss it.

The judgment is affirmed.