# Ex Parte Martinez, Jr.

> Court of Criminal Appeals of Texas · March 27, 1912 · 66 Tex. Crim. 1

URL: https://www.frixlaw.com/law-library/cases/3931973

## Case

- **Full name:** Ex Parte Leon Cardenas Martinez, Jr.
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** March 27, 1912
- **Citations:** 66 Tex. Crim. 1; 145 S.W. 959; 1912 Tex. Crim. App. LEXIS 192
- **Precedential status:** Published
- **Opinion:** Dissent by Davidson
- **Judges:** Harper, Davidson
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3931973

## Opinion text

DAVIDSON, Presiding Judge
(dissenting).—On the 23d of July, 1911, appellant was arrested for the murder of Miss Emma Brown, the homicide having occurred the day before. He was subsequently placed in the county jail at Pecos City, the county seat of Eeeves County. S. J. Isaacks, the district judge of that judicial district, states under oath that he was notified of the homicide as well as of the arrest of the applicant precisely at 12 o’clock on the night of July 23, 1911. He was then at his home in Midland, about one hundred miles east of Pecos City. The train being an hour late, enabled him to catch it, which he did, and went to Pecos City, arriving there in the early hours of the morning of July 24, 1911. He went to the hotel owned by Mr. Johnson. Hpon arriving at Pecos City' Judge Isaacks had a conversation with this Mr. Johnson, and subsequently with Mr. Stein, Mr. Cowan, and the district attorney in regard to defendant’s case, and the excited condition of the country and the threatening attitude of the citizenship thereof towards the applicant. The judge immediately ordered applicant transferred from the Pecos City jail to the jail at Midland, one hundred miles east of Pecos City, to prevent the tynching or possible lynching of applicant at the hands of a threatened mob. Judge Isaacks testified before this court upon the hearing of the writ of habeas corpus, and, among other things, he stated “he could not begin t'o tell all that was said, because several people remarked to me something about a mob. The first conversa
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tion I had was with a friend of mine, Mr. Johnson. He is the proprietor of the hotel.” The judge also testified to having conversations with the district attorney, with Mr. Cowan and Mr. Stein. Mr. Stein was vice-president of the bank at Pecos City. It seems that Mr. Cowan is also one of the vice-presidents of the same bank. Judge Isaaeks also testified it was not particularly the fear of lynching which impelled him to send defendant to Midland. “When I sent him to Midland the first time I did so for his personal safety. I could not say that I feared he would be mobbed, but to guard against any possibility of it. I thought there was a possibility of his being mobbed, yes, sir, and the unsafety of the Pecos jail.” He further stated that this was the only instance during his official career in which he ever sent a prisoner from the Pecos jail to the jail of another county. He had been district judge about three years. Before applicant left the Pecos jail for Midland- the district attorney went to the jail and secured from him a confession, which was subsequently used on applicant’s trial before the jury. The evidence of Judge Isaaeks is not only corroborated as to the mob spirit pervading that whole county, but it is made evident from the facts that this mob spirit was pervading the entire county, and the violence was threatening and imminent.
Judge Isaaeks entered an order on that day, which was Monday, the 24th of July, directing that a grand jury be summoned and petit jurors drawn to try applicant. The grand jury was empaneled on Tuesday, and indictment returned the same day, and a copy was served on applicant at 7:25 p. m. the same Tuesday evening at Midland, one hundred miles distant from the court where the indictment was returned. There are several transcripts of the minutes of the court showing the different steps taken during what Judge Isaaeks styles a special term of the- court. The caption of these transcripts conflict with each other, especially as to the date of calling the alleged special term. One caption places the convening as of date July 25; another as of July 24. Hone of these orders show that any notice was given convening the special term of the court, nor that it was in any way published either in newspapers or by posting notice. In fact, -the judge orally testified that the only notice he gave was to instruct the district clerk to inform the sheriff that he was going to hold court. The only matter recited in the transcript of the order entered by the judge is a recital of the fact “that a horrible murder had been committed,” etc., and it was necessary that a special term of court b§ held for the purpose of investigating that murder and trying the person to be indicted by the grand jury. It is also recited in the same order that a special term should be called to begin at 2 o’clock p. m. on July 24 to investigate the killing of Miss Brown. This order was subsequently entered of record in the minutes of the court as certified by the clerk. This shows to have been made on July 24. Another transcript shows that the order of the judge was dated the 25th of July, 1911, calling a special term for 2 o’clock July 24. Another transcript
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omits entirely the mention of anything concerning the order, in regard to the special term.
The day before the organization of the grand jury this applicant had been sent out of Reeves County one hundred miles away and confined in jail at Midland in Midland County. He was, therefore, not present when the grand jury was organized and the petit jury drawn, when the indictment was returned into court, and in fact during none of the subsequent proceedings of the court until, he was brought hack for trial, reaching Pecos City early Friday morning. Under this condition of things he was necessarily debarred the legally accorded right under the statute of having an opportunity of challenging either the array of grand jurymen or anyone of the selected grand jurymen. After consulting with Mr. Johnson, Mr. Stein, Mr. Cowan and the district attorney, Judge Isaacks ordered the State rangers to Pecos City to protect applicant from the threatened mob violence. They reached there Wednesday or Thursday and were present during the trial to guard applicant from mob violence while he was being tried. Hnder the law it seems that the State rangers are placed only under the command of the Governor. In this instance the judge seemed to think the emergency was of such a character as called for his interposition, and he, therefore, ordered the rangers to Pecos City without further preliminaries or delay. This was to meet the emergencies and attendant conditions at that time and place.
Applicant is a Mexican hoy under twenty-one 3rears of age, the evidence being in conflict' as to whether he was over or under seventeen 3rears of age. Miss Brown was an American lady. The threatening mob were Americans. The facts also show, without stating the evidence in the exact language of the witnesses, including Judge Isaacks, that the conditions were such and the situation so grave that he felt it incumbent upon him to take the steps he did take to order the court in the manner in which he ordered it, and to send applicant away one hundred miles from danger and out of reach of the mob until he could get everything in readiness to put this applicant upon trial before a jury. His acts, conduct and orders seemed to have been based upon practically this conclusion, and especially was it deemed necessary to have the rangers present when the applicant was brought back to be placed on trial before the jury.
-A trial was begun on Friday morning, and had to be suspended during the day for sufficient length of dime to secure the presence of applicant’s mother as a witness. She lived about twenty miles distant. Saturday morning the case proceeded to a conviction, which occurred sometime just after the noon hour.- After the conviction applicant and his counsel were allowed something like two hours in which to prepare a motion for new trial which, at the expiration of that time, was promptly overruled by the judge, and sentence of death, which was awarded by the jury, was pronounced against the applicant. It may be stated here, and in this connection, that the statute provides the
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accused shall have two full days after the return of the verdict of the jury in which to prepare a motion for hew trial. After preparing the motion applicant’s counsel started to the courthouse. En route they were hailed and stopped by a concourse of men, the size of which is variously estimated. This crowd came from the hank presided over by Mr. Johnson, and was headed by him as spokesman. He testified in this connection as follows: irWhen we started to go out the door of the bank I asked them where Mr. Parker and Mr. Estes were. Just as I got out I saw them going up the street, going to the courthouse. They were going up the street towards the courthouse as we came out of the bank, and I holloed at Parker but he did not hear me. When he got up to where he turned around a corner going across a vacant block I holloed again at him and he did not hear me, and some one in the crowd holloed or called him and he stopped right at- the walk that leads into the courthouse about one hundred and fifty feet from the courthouse door.” A conversation occurred .between Mr. Johnson and Mr. Parker at that point. Johnson informed Parker of the mission of the crowd which he headed, and this was, he stated, to prevent applicant taking an appeal to the Court of Criminal Appeals. He testified: “I said Judge (Parker) they tell me you are going to appeal the case, and I want to- ask you as a citizen and in behalf of these men here not to do it, not to prolong the case, but let it go on, let the boy suffer the penalty. I said it would be best for our country. I said if we don’t do that it will cause mob law in the future, and I said I would not have anything like that' in our county for anything, and I said as a friend I don’t believe you have any ground whatever to appeal the case on, let me beg of you not to appeal the case. When I first commenced talking to him he said to me, Johnson, I want you to always understand you can not scare me. I said, Judge, you know we did not come here to scare you, we are not on that mission. I said we want to keep the peace and dignity of our county up, and you know I would not come to you to bulldoze or anything like that in a ease like this, just come as a neighbor, a friend and citizen to get you not to do this, for I think Judge it is the best, and he talked on quite a little and finally he said, well, you all go on off and it will be all right.”
Another witness testified he did not hear Johnson tell Parker if he or Estes appealed the case they would hang the Mexican before morning. He swore that the crowd was excited; sometimes four or five of them would be talking at the same time. This occurred while Johnson was talking to Parker and caused by what was said between Parker and Johnson. The sheriff and county judge were also in this crowd. “They were appealing to them to let the case stand as it was.” In the crowd was one or more of the jurors who had sat on the jury and convicted the defendant.
Mayfield testified he heard threats after sentence was pronounced on defendant, These were threats of mob violence. He heard what oe
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eurred between Johnson and Parker, and heard Johnson ask Parker not to take an appeal. He says Johnson told Parker if there was any mob violence the lawyers would be responsible. Another witness testified at that time, “As for myself, I will move my family out of' Beeves County if this is done” (meaning if an appeal is taken). Mayfield is the witness who, when defendant was first a'rrested after the homicide, threatened to hang him if he did not confess to the homicide. Mayfield further said to Parker: “Por God’s sake go back to your office and clean your hands of this.” He also states there was general talk about lynching defendant if his case was appealed.
Camp testified in regard to the conduct and talk among the crowds in and about the town in regard to this matter. This was adverse to defendant and threatening. It was remarked by these crowds that “they could hang three as easy as they could one.” He saw Parker and informed him of what was being said, and the feeling of the crowd about the matter. When asked as to what percentage of the people believed appellant guilty, he replied, “one hundred percent.” Parker and Estes, attorneys for defendant, testified their lives were threatened if an appeal should be taken. Estes testified orally before the court, and Parker by affidavit. Parker was appointed by the court to defend the defendant after defendant had been sent away to Midland, and he did not see defendant to have a consultation with him until his return on Friday morning. Estes, the other attorney, lived in El Paso, and was employed to defend the defendant, and came to Pecos City on the Friday morning train. After reaching the point he made arrangements with Judge Parker to assist him in the defense of the case. They were unable to have a conference with their client; at least they did not have one until he was brought into court Friday morning for the purpose of being placed on his trial before the jury. This occurred after the court was open and the “judge on the bench.” They asked permission to talk with defendant. This conversation between them and defendant occurred in the presence and hearing of two State rangers. The rangers informed the attorneys that they “could not talk to him except in their presence.” Estes further testified that after the verdict they were given until 3:30 p. m. by Judge Isaaeks to prepare a motion for new trial. The time allowed was something like two hours. After preparing the motion he and Judge Parker started to the courthouse. En route they were hailed and turned around and “saw a great many people coming, coming rapidly.” He estimated the crowd at about fifty persons. “They came all around us. The sheriff was there and to their left side. 'They surrounded us there, and Mr. Johnson seemed to be the spokesman. He was very much excited and out of breath, and told us we must not appeal that case. If we did they were going—I do not remember what they said exactly, said if you are going to take' an appeal of this case we are going to hang this defendant tonight, or take him out and hang him, and said we can hang three as easy as we can one, or two as easy
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as we can one. And then Mr. Hosie got up on a box and made a speech, and said they would not permit any appeal at all.” One of the jurors who brought in the verdict and was in the crowd, stated: “He told Judge Parker that he would not permit any appeal, because he had said in his argument to the jury he would be satisfied with any verdict that they might render. Judge Parker attempted then to argue with them and asked them if they did not think that the question of law as to the trial of the ease ought to be settled by the Court of Criminal Appeals, and they immediately said no, they would not permit it at all, it must not be done.” Estes further testified that he could not remember anything like all these people said to Parker and himself. Another one of the crowd insisted on knowing what the attorneys of the defendant were going to do, and stated they, the crowd, did not intend leaving there until they knew what was going to be done. Finally Parker said: “We will comply with your request.” Estes said he then went to the hotel and remained there until he could get out of town on the first train, and did leave on the first train. He did not go about the courthouse and was not in the courtroom pending any of the subsequent proceedings, and took no further part or action in the case. He was asked why he did not go to the courthouse and replied, “I was afraid to, afraid of mob violence.” He further testified that for the same reasons he did not give notice of appeal. Several bills of exception were reserved to the rulings of Judge Isaaeks, but were not presented to him for approval for the same reason, the witness saying, “because I was afraid to as I said before.” This witness had previously held the office of county attorney of Beeves County, and had also held the office of district attorney of the judicial district of which Beeves County was a part.' He further testified that he believed the 'crowd intended mob violence towards him had he undertaken to perfect an appeal in the case, and that was the reason notice of appeal was not given and entered of record. Prior to going into the trial of the case he was notified if he was “not careful ’how he conducted the case he would get the Mexican hung, and they would not stop at him.” Johnson also testified that Parker had been exclusively his attorney for several years. Since this trouble, however, he has not been his attorney. Subsequent to this trouble he advised Parker to leave Pecos. This he says he did because Judge Parker had written some letters to Austin to the effect that he had been intimidated in the trial. Judge Parker made an affidavit which was used as evidence. In this he narrated his connection with the case by appointment of Judge Isaaeks, and subsequent employment by and with Mr. Estes as counsel. He also mentioned reserving bills of exception which were not presented to the court, after the action of the crowd heretofore mentioned. The affidavit then states: “After the case was tried and after we had dictated hurriedly a motion for new trial and while the stenographer was reducing it to typewritten form some twenty-five or thirty men on the road between my office and the
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courthouse and within a few feet of the courthouse door, surrounded Mr. Estes and myself and stated “If the case was appealed the Mexican would be hung before the next morning; that they were determined no matter what the consequences were, that he should hang before morning. That many citizens might be killed if any resistance to such hanging was made. They began to plead with Estes and myself not to appeal the case; also stated, at least some of them did, that they were determined on- the fact that it should not be appealed. Some of t'he parties made remarks to the effect that there would be three to hang if the case was appealed. They would not allow us to reason with them at all. They seemed to fear that we would convince some of the crowd that they were making a mistake, and that they might fail to accomplish what' they wanted. I said to the crowd that I wanted them to understand that what I did would not be done because of fear of personal violence or injury to myself, but if it was true that they intended to hang the Mexican that evening or night because of an appeal, I would see that notice of appeal was not given; but that I would not promise what might happen later on or might not happen; that I simply would not give notice of appeal. How the statement by me to them that I feared no personal injury to myself was not literally true. I did not fear injury to myself so much as I feared for my client, but, still, I simply did not know what they might do. I felt that if they undertook to take the Mexican from the rangers, some of them would get killed, and if they did, then they, in their rage, would be liable to turn on Estes and myself, and we could not well scrap a whole county, or what looked like a whole county to us at the time. There were a great' many threats made by these people, as I understand, and very serious ones. ... As illustrative of the extent to which these people were worked up, several days after the trial, they brought a petition signed by nearly everybody in the county and wanted me to sign it. This was a petition to the Governor to let the Mexican hang; also some days after that, in an effort to controvert the statements before the Governor to the effect that the defendant’s attorneys were intimated, some of them wanted me to sign an affidavit to the effect that there was no intimidation at all in any shape, form or fashion.”
There are quite a number of things that might be mentioned more or less pertinent to the matter growing out of the incident to the excited condition of the crowds and the people about the court and the town, and the closing scenes of the trial which tended to illustrate the attitude of the danger to appellant and his counsel, and their environment's, but it occurs to me that what I have collated is sufficient evidence to show such conditions.
It is a conceded fact that appellant is a Mexican, born in Gallega, State of Durango, Republic of Mexico. That he is under twenty-one years of age, and that his father is still a citizen of Mexico, and his mother is a Mexican woman. There is some conflict in the evidence as
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to whether the defendant is over or under seventeen years of age. The State’s evidence is to the effect that the defendant, testifying in another case, stated he was seventeen years of age. Another witness stated that he had been invited to appellant’s birthday entertainment. This invitation was in writing and in the Mexican language, but it had been interpreted to him as an invitation to appellant’s eighteenth birthday. If appellant was in fact eighteen years of age on that birthday, it would have occurred on the 10th of June, 1911. This invitation seems to have been sent out in April or May. The evidence for the defendant is that he ivas born June 10, 1896. This fact was testified by himself, his mother and his father. His Mexican citizenship is not disputed.
Appellant testified that when the motion for new trial was overruled the judge asked him what he had to say why the sentence of the law should not be pronounced, and he replied, “I want to take my case to the Court of Criminal Appeals, my lawyers will do the rest.” The judge says the only reply the defendant made was “nothing except as to my age.” There was no entry of the notice of appeal found in the records of the trial court. This is a conceded fact. Estes, as before stated, testified he did not go back to the court for fear of the mob violence, and left town upon the first outgoing train. Judge Parker testified to a whispered conversation with the district judge in regard to an appeal, substantially notifying the judge that he would not enter notice of appeal.
It is the contention of the State under this condition of the record, that because the notice of appeal was not written into the minutes of the court, that is, that the notice of appeal was not made and entered of record, therefore, this court could under no circumstances entertain an appeal, and that -without such notice being written into the minutes of the trial court the jurisdiction of this court can not attach. This position is based upon articles 882 and 883 of White’s Ann. Code of Crim. Procedure. Article 882 reads: “An appeal may be taken by the defendant at any time during the term of the court at which the conviction was had.” Article 883 is as follows: “An appeal is taken by giving notice thereof in open court and having the same entered of record.” Quite a number of decisions are cited, and many more could be, holding that the notice of appeal in the trial court is necessary, and that it must be entered of record. There are also a great number of cases holding that the jurisdiction of this court does not attach without the giving and entry of such notice. I do not purpose reviewing these cases. As written and the connection in which they are written, they are correct; at least, such is usually the practice in this State. The manner of taking an appeal may be classed as practice or procedure, but as to its proper class I have here no concern, but the right of appeal itself is far more reaching than the simple notice or entry of such notice. It is a constitutional right of which neither the courts nor the Legislature can deprive a person accused of crime when the
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occasion for exercising that right occurs. He may waive that right if he sees proper. He may accept the sentence and suffer the allot'ed punishment; but that right belongs to him, to be exercised or not in his discretion or at his option. Others can not waive it for him. His attorneys can not do so, nor can they waive any other right that he may have guaranteed him. An attorney can not absolutely bind his client by any act prejudicial to the legal rights of that client in contravention of the general principles of law, much less can the attorney bind his client by waiving his constitutionally guaranteed rights. The attorney can not waive the presence of his client during any part of the trial, not even when additional instructions are given. These questions are so thoroughly a part of the law of the land that they are household words in our jurisprudence. I do not care to review the cases in this State or out of it, in regard to these matters. Appellant says he gave “notice o_f appeal,” “and his lawyers would do the rest.” One of his attorneys by reason of the threats and intimidations did not and would not go to the courthouse to look after the rights of his client, testifying that he was afraid of the mob. This is not questioned by the evidence, nor disputed in the record. The other attorney refused to give notice of appeal by reason of intimidation as shown by all the witnesses for and against the State, especially by Parker’s affidavit. They all agree that after the crowd surrounded Parker and Estes, Judge Parker finally told them that he would not appeal the case, and that there would be no appeal from a conviction. This is proved, if anything in this record is proved at all, by all the witnesses who testified in this regard to that phase of the trouble. There is no question and ought not to be any question in the mind of any candid .man or one moved by intellectual honesty, that the undisputed facts show that the attorneys were actuated by duress not only to save their client from mob violence and lynching, but' as well to save themselves from threatened danger to their persons. The object and purpose of the excited crowd which surrounded these attorneys, and their conduct on that occasion about these attorneys as the attorneys approached the courthouse to present defendant’s motion for rehearing, is explainable upon no other hypothesis or reason. That the court ought to have so understood it', and that the attorneys did so understand it is hardly debatable. After surrounding them and making the threats, they extorted a promise that notice of appeal would not be given, and no appeal would be taken, and upon that assurance from Judge Parker the crowd left the attorneys.' Parker went into the courthouse; Estes went away. Parker refused, or at least failed to give notice of appeal after being fresh from the influence of the mob. The writer does not believe that any candid reader can look through this record and not reach the conclusion, and the only conclusion t'o be deducible from the record, that the district judge understood and appreciated the mob spirit which surrounded his courthouse and was prevalent in that community at the time of the trial, and at the time of the overruling
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of the motion for new trial and sentence was pronounced against the accused. He was present at the court and in the town from the time he reached there Monday morning until he left Saturday night. He saw the crowd that had actually gathered about his court.- He talked with the people and informed himself of the danger, and he so testifies. He knew and witnessed the fact that the courthouse was crowded with people at the time he passed sentence upon the defendant. He understood from Judge Parker in the whispered conversation that notice of appeal would not be given, and that it was not in fact given. Prom the time Judge Isaacks reached Pecos City early on that Monday morning until he adjourned court Saturday evening every act and movement on his part the record shows he recognized the presence of the mob and the danger which threatened the lynching of defendant. His act and order sending the Mexican one hundred miles away from the danger point before convening his court, the rushing of the proceedings in the absence of the defendant, and without notice- of the convening of the court, or calling the term of the court which he proposed to hold for the trial of the defendant; the selection and empaneling of the grand jury in the absence of the ■ defendant, the service of the indictment on the defendant one hundred miles away the same day upon which it was returned into court, in order that the trial of the case might be rushed as rapidly as possible by giving the necessary legal two dajrs’ notice to appellants by service of such copy, the sending for the State ranger force; the absence of consultation between defendant and his counsel except in presence of rangers; and the fact that by his act and order such consultation was prevented until the morning of the trial, his bringing the defendant back just time enough to go at once into trial, the rapid disposition of the case during the trial, and the few hours allotted defendant and his counsel for the purpose of preparing and presenting motion for new trial, and its rapid disposition, it seems to be proof evident, and stronger than words of denial, that the court saw the unmistakable evidences of mob violence threatening defiance to constituted authority and the authority of his court. In order to secure a fair trial a change of venue could have been ordered b)r the court when defendant was at Midland, and this without, at least, immediate danger to the life of the accused, and the ease placed away from the environments of the threatening situation. White’s Code Criminal Procedure, article 613. The defendant was then beyond the reach of the mob, and one hundred miles distant. It is evident from this record, and it must have been evident to the trial judge, that bringing back the defendant under the environments that surrounded his court and placing him on trial before a jury where witnesses say that one hundred percent of the people of the county believed defendant guilty, is not evidence of a fair trial, nor could the judge be ignorant of the conditions, for he testifies he talked with some of those people and became sufficiently alarmed -to send defendant away for personal safety. There is no reason assigned why the de
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fenclant was not kept beyond the environments of an enraged and threatening population until reason could, to some extent, assert' its swajr, or change of venue had to a county that was not so thoroughly infest'ed with the mob spirit. Our law places it within the power of the district judge, and if necessary authorizes and even requires him to change the venue to a county where a fair trial can be had. It invests him with discretion independent of motion made by either side to change the venue. This is a wise provision of the law if fairly and justly economized and used. There are circumstances which actuated the framers of our laws, organic and statutory, in incorporating such provision. The judge is supposed to know, reasonably at least, of the conditions which surround the county seat where he holds his court; at least he ought to know the environments of the courthouse, immediately about the courthouse and within the courtroom. That a conviction would result in this case was not a question in the mind of anybody, so far as this record is concerned, from the opening statement of the judge that “there was on July 22, 1911, committed in Reeves County a horrible murder on Miss Emma Brown” entered July 24, 1911, until the final close of the trial and term on July 29, 1911. Rot' a witness, including the judge, even expressed anywhere in this record any doubt of such a conviction. It is equally patent and self-evident that that conviction would mean and did mean from the beginning the death penalty. Ro one was more thoroughly aware of this than the judge. It moved him to send the defendant away from the danger point; it actuated him in bringing the State rangers to the scene of the trial, and he shows it as clearly as words can write it down in the opening sentence of his order'that “there was on July 22, 1911, committed in Reeves County, a horrible murder of Miss Emma Brown.” That the defendant would be convicted, that it was impossible to get a fair and impartial jury in that county is as evident from this record as is the fact that Judge Isaacks tried the case and the jury returned a verdict assessing the death penalty. If there is a case that could demand of the court a change of venue to a county otherwise situated, more than any other, it is this case. A rapid trial and rapid execution of the sentence was thus sought to be obtained, and to reach this the trial was hurried as part of the proceedings to avoid the lynching. It may be useless for the judge to say “the defendant had a fair trial.” The conviction having been obtained, so far as the verdict of the jury was concerned, then the all absorbing question in the minds of the excited crowds became the avoidance of an appeal. This must be avoided and thwarted, and the attorneys were made aware of that fact in language far more forcible than elegant or diplomatic. The lawyers did not question the imminent and pressing necessity, and this was done almost at the steps of the courthouse.. They were then en route to present a motion for rehearing under orders of the court which they were to present within the space of two or three hours, in the face of the statute which guaranteed them the legal
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right to have two days in which to prepare it. It was the one single purpose that impelled the crowd which surrounded the attorneys and called forth the threats to hang their client and perhaps themselves unless appellant was denied the right of appeal.
Is not this failure to enter notice of appeal strong and convincing evidence of an unfair trial? Does it not exclude the idea of volition on the part of appellant and his counsel? If not so, it might he seriously asked what would it take to constitute duress under such circumstances. Would it be said that these men were acting of their own volition or the defendant was freely or voluntarily waiving any right of appeal when one of the attorneys says that they were threatened with duress ‘ffiy the whole county or what seemed to them to be the whole county?” Under these circumstances it may be seriously asked if there was no notice of appeal given, did this failure on the part of defendant and his counsel constitute a waiver by appellant or his attornejrs of his right of appeal ? Ho witness, of course, swears in this record that the defendant ever authorized his attorneys to waive notice of appeal. If they did waive it, as they say they did, under the duress imposed upon them, this could not bind the appellant, under those circumstances even had he agreed to the terms. This was as clearly a case of duress as can be found in the history of criminal jurisprudence. The writer would certainly say and answer that the defendant has lost none of his rights under the circumstances stated, nor can he be held to have waived his right of appeal under these conditions. A duress, violence or threatened violence which leads an accused to believe his life is in danger or his body of serious. bodily injury, guarantees irresponsibility for crime, or for the act committed or omitted. It is placed upon the highest ground of self-defense. "A person forced by‘threats or acts of violence to do an act is not liable to punishment for the same.” This includes loss of life or great personal injury, etc. White’s Ann. Penal Code, article 44; Paris v. State, 35 Texas Crim. Pep., 82; Stanley v. State, 16 Texas Crim. App., 392. It is unnecessary, however, to cite authorities on such proposition. The statute excuses the party acting when the act performed is an affirmative aggression, that is when he does an act otherwise criminal. Could it then be honestly, seriously or candidly contended that if a party killing under such circumstances is to be held blameless, yet if forced to save his life by reason of such threats he does not give notice of appeal, he is, therefore, to forfeit his life and be held to have waived his right? Is his life in one instance less sacred than in the other ? The writer would answer these propositions emphatically in the negative.
If the defendant was prevented from appealing by duress, that is, under the circumstances shown by this record, the sentence is clearly void, as much so as if the entry of the appeal was entered of record. Had notice of appeal been entered of record, there would be no ques
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tion that the sentence following the giving of that notice of appeal would be absolutely void and beyond the jurisdiction of the court to pronounce it upon the defendant. If so, then when duress enters into the case and prevents notice of appeal, the sentence would, therefore, be equally illegal and wholly void. Under all of the authorities relief can'be had by habeas corpus from a void judgment. Sentence in this case is the final judgment. The defendant was authorized to appeal; only before the passing of the sentence, and this by reason of the statute which requires or authorizes the appeal in death penalty cases prior to the sentence. Duress—threats to take life which prevent giving notice of appeal—inhibits the passing of the sentence upon the return of the verdict. Under such circumstances the jurisdiction of this court is not superseded by failing to give notice of appeal. Its jurisdiction may be exercised by any writ or process known to constitutional or statutory law in this State, and in the absence of statutory procedure or provision, then by any procedure known to the common law. White’s Ann. Code of Criminal Procedure, article 26.
Article 5, section 5, of the Constitution, provides as follows: “The Court of Criminal Appeals shall have power upon affidavits or otherwise to ascertain such questions of fact as may be necessary to the exercise of its jurisdiction.” It also provides: “The Court of Criminal Appeals and the judges thereof, shall have the power to issue writs of habeas corpus, and under such regulations as may be prescribed by law issue such writs as may be necessary to enforce its own jurisdiction.” That it has jurisdiction in felony cases is not to be discussed: This is fixed by the Constitution and statutory law. That this jurisdiction attaches in appeal cases is also fixed by the Constitution and is coextensive with the limits of the State. This constitutes one of the essential purposes of the creation and the existence of the Court of Criminal Appeals. Por these purposes it was ordained and created. That its jurisdiction attaches by the giving of notice of appeal in open court and the entry thereof of record is a statutory provision. It is a method provided by which the accused may without circumlocution and with ease and facility appeal his case from a conviction in the lower court. That the party may fail to give notice of appeal is usually considered a waiver of the right of appeal,, but this, as before stated, inheres in
him.
The court or other parties can not deprive him of it. When the convicted person is, by duress, prevented from giving this notice or of taking his appeal, the jurisdiction of this court is not ousted, nor is the accused prevented from having his ease reviewed and his remedy is guaranteed by some legal method. The superior force preventing him from appealing, whether the mob violence, threat's to take his life or serious bodily injury, or any sufficient cause of duress, even at the hands of the trial court, can not deprive him of his right of appeal or oust the jurisdiction of this court to execute this as one of the purposes of its ordination and mission. The Constitution and legislative Acts are fully ample for the authority of this court
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to perforin all functions confided to it in all of its ordained authority. This can be done by “affidavit or otherwise” and authority is fully conferred both by the Constitution and legislative enactment “to issue such writs as may be necessary to enforce its own jurisdiction.” Article 5, section 5 of the Constitution. In addition and to carry out the purposes of the constitutional provisions, the Legislature, in the absence of having provided some special order, has ordained generally in article 26 of the Code of Criminal Procedure, that “the rules of the common law'shall be applied and govern.” Therefore, if the legislative acts have not specially provided a rule of procedure, this court may and shall be governed by the common law rules of procedure. See eases cited in White’s Ann. Code of Criminal Procedure, article 26 and section 29.
The writ of certiorari is one of the well known writs of procedure at common law, and perhaps equally as well known to the practice in Texas by which appeals may be' carried up or defective records supplied. If notice of' appeal was given, or by duress the party was prevented from giving such notice of appeal, the writ of certiorari is available to get the record before the appellate tribunal. Threats and statements made whereby the party aggrieved was prevented from perfecting an appeal bond or from doing things essential to an appeal, will excuse a failure to perfect an appeal, and the appeal may be perfected by certiorari. Melton v. Edwards, 6 Heisk. (Tenn.), 250; 5 Cyc., 764, note 3 for cases; Sanders v. State, 85 Ind., 318 ; Simmons v. Dowd, 76 F. C., 155. A writ of habeas corpus may always be assisted by the writ of certiorari. This proposition seems to be without contradiction, and to the efféct that a judgment brought about by duress or fraud can thus be nullified.
' The ease of Sanders v. State, supra, is a ease so conclusive of this case and the conditions of this record, that I take the liberty to reproduce it in this opinion as a part of it, as follows:
“This is an extraordinary case. The facts proved, the procedure adopted and the relief sought are strange and unusual.
“The facts stated and proved are these: In-April, 1S78, Josephine Sanders, the wife of the appellant, was slain by a pistol shot; at the time she was in a room alone with her husband, and he did not and could not give any account of her death; he was then, and had been for many years, addicted to the use of alcoholic 'liquor and opium to such an extent that he had probably become insane; he was arrested shortly after the death of his wife; his case came on for trial; his counsel and many witnesses of unquestioned veracity testify that at the time of his trial he was insane; the homicide had aroused an intense feeling in the vicinity of the county seat where the killing was done, and the case put to trial; threats were made of lynching by a mob; counsel prepared an affidavit for delay, but feared to present it lest the mob should seize and hang the accused; the sheriff of the adjoining county came to the county seat of Clay County and warned
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the sheriff of that county of imminent clanger from an armed mob; a jury had been empaneled and a plea of not guilty entered, but so great was the threatened danger that counsel, to save, as they believed, their client’s life, withdrew the plea of not guilty, entered a plea of guilty, on which, without evidence, the jury returned a verdict of guilty, and a life sentence was immediately pronounced upon the verdict bjr the court; the accused was at once hurried to the train and conveyed to the State’s prison. For the purpose of clearly exhibiting the situation at the time the plea of guilty was entered, we quote from the testimony of the gentlemen who were then appellant’s counsel, and who are men of high character and undoubted integrity. One of them says: ‘As one of his counsel I urged and demanded of him a plea of guilty, with which I pledged myself to save his life; his counsel all concurred; Sanders always denying any knowledge of the homicide; his counsel were responsible for the act of pleading guilty, believing at the time that it was the only course by which his life might be saved.’ Another one of the counsel says that. ‘the accused was bewildered and refused, but finally seemed to consent, and at last appeared to acquiesce in letting counsel take their own course; that the court was agitated and alarmed, and recommended and advised the plea of guilty.’ The turnkey of the jail, the sheriff of Clay County and the sheriff of the adjoining county concur in stating that there was great and imminent danger of mob violence; one of the jurors says that there was intense excitement among the large crowd of people present at the trial; that he was himself stationed at the door of the courthouse to signal to the jail any movement of the .mob; that the judge was greatly excited and said in ‘the evening, that he ‘had not drawn an easy breath until he had seen the train in motion with" Sanders’ aboard.’ There is much other évidenee as to the presence of a large number of angry and excited men, and it is also shown that they uttered threats of violence and appeared determined to seize and hang the appellant unless punishment was at once imposed upon him.
“The relief prayed is that the judgment entered upon the plea of guilty may be vacated and the appellant put upon his trial in due form of law.
“There are strong reasons in support of the appellant’s prayer. All men are by our laws entitled to a fair trial, in absolute freedom from restraint and entire liberty from fear of threats and violence. It is almost a mockery to call that a trial, or a judicial hearing, which condemns an accused upon a plea of guilty forced from his reluctant counsel by threats of an angry and excited mob, and interposed because they believed that to proceed with a trial upon a plea of not guilty would result in the hanging of their client by lawless men. A man who makes a promissory note because of fear is entitled to relief. A man who executes a deed under duress is entitled to judicial assistance. A will executed under the influence of fear falls before the law. These are small things when compared with life and liberty, and yet
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in the eyes of the law they are null. If such things are null when procured by fear, or extorted by violence, should not a plea be so, when to have refused it would have been to put in jeopardy the life of the man arraigned upon a charge of felony? In many- respects the facts of this case go far beyond that of ordinary cases of duress, 'for here the officers of the law, judge, sheriffs and jailers were inspired with fear of violence; counsel of age and experience, influenced by the appearances of danger which surrounded their client, secured from him a reluctant acquiescence to the plea of guilty. More than this, the accused, if not at the time absolutely insane and incapable of understanding what he did, was weak and enfeebled in mind, and, as his counsel express it, dost and bewildered/
“That the case made is one entitling the appellant to some relief is clear, but whether the laiv vests the courts with power to grant it is by no means so clear. Unless the law, as it exists, confers this authority, then the courts do not possess it. Hard as the case may be and grievous as may be the suitor’s situation, they can make no new law to fit this case. If a new law is needed it must come from the lawmaking power.
“The right to pardon is vested in the chief executive of the State, and this, it is suggested, is the source from which relief must be obtained in such cases as this. But if the courts have power to grant relief, the fact that the Governor may pardon does not abridge a party’s right to appeal to the courts for assistance. The power to pardon does not exclude the right to hear and determine; both powers may concurrently exist. For is a pardon always adequate relief. An innocent man suffering from an illegal sentence, procured by fraud or extorted by violence, may desire a trial and an acquittal which shall remove from his character the stain of guilt, and this the exercise of the pardoning power can not do. To pardon is to exercise executive clemency; it is an act of mercy. An acquittal is the vindication of a right, the award of justice. Again, the executive may not feel warranted in turning a condemned criminal loose, and, as he can grant no new trial, this he must do or deny a pardon. The court need not discharge, but may put the accused again to trial. We can not believe that the power to pardon was meant to cover every case of an unjust conviction, where the accused had, without fault on his part, not availed himself of the right of appeal.
“If our statute provides exclusive remedies for the relief of an accused, then, of course, those remedies must be pursued, and our next enquiry is, are such remedies provided?
“There is the remedy by appeal; but this can not reach such a case as the one in hand. An appeal would have been unavailing.
“The record showed a confession; for, on the face of the record, such the plea appeared to be, and there were no objections or exceptions. It is evident that the statutory provisions concerning appeals in criminal cases can have no application to a case like this. Here
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there were no errors committed in ruling on pleadings or in conducting a trial. In truth, there was no trial, and in law no confession; for a confession, like any other act, extorted by violence or procured through fear, is without effect. If, then, there was in fact no trial, and in law no plea of confession, there was a condemnation without either a trial or a confession by plea. If it be correct to affirm that the plea procured by fear is of no effect, it inevitably follows that the sentence was pronounced where no hearing was had and no guilt acknowledged. It seems clear, therefore, that the statute concerning appeals is not applicable, and, if not applicable, then it can in no sense be exclusive of other remedies, if any such there are.
“There-is the remedy by a new trial. That can have no application to a case where there was no trial. Again, it can not apply, because .as the statute stood at the time of the appellant’s sentence, the motion must have been made before judgment, and that, the record shows, would have been impossible in this case. No time intervened between the sentence and its execution. Once more, this remedy can not be meant for such a case as this, because the grounds for a new trial prescribed by the statute would not cover the wrong here committed, nor could.it bring relief.
“It is obvious that a motion in arrest of judgment can not be appropriate, for the face of the record is fair, and in appearance all the proceedings are regular. A motion for a venire de novo is not a statutory remedy, but is a recognized one borrowed from the common law, and it, as-is sufficiently obvious, can have no application.
“We find, then, no statute applicable, and consequently none excluding other known and recognized remedies, if any such there are, not inconsistent with our constitution and laws.
“May we look to the common law ? Our statute provides that, among other laws, ‘The common law of England, and the statutes of the British Parliament made in aid thereof to the fourth year of the reign of James the First' (except the second section of the sixth chapter of forty-third Elizabeth, the eighth chapter of thirteenth Elizabeth, and the ninth chapter of thirty-seventh Henry the Eighth) and which are of a general nature, not local to that kingdom,’ and not inconsistent with the Constitution of the United States or of the State of Indiana, and not inconsistent with the national and State statutes, shall be the law of the State. It is plain that no provision of the common law which prescribes a remedy for relieving an accused, who has been forced to plead in confession by lawless violence, can be deemed in conflict with the Constitution of the State or nation; for both these instruments are explicit in their commands that all accused persons shall have a public and impartial trial, and shall only be condemned by due process of law. Nor is there any statute, as we have seen, which can be deemed inconsistent with a common law remedy which will reach a ease like this.
“The common law did not authorize the granting of a new trial in
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cases of felony. Rex v. Bertrand, 10 Cox C. C., 618; Harris Crim. Law, 406. The remedy of an accused in cases where the court erred as to a matter of law was a recommendation to pardon, signed by the judges, and- this was granted as a matter of course. Reg. v. Murphy, Law R., 2 P. C., 535. The remedy, where there was an error of fact, was by a proceeding called a writ coram nobis. This was a very common remedy in civil actions, but was seldom resorted to in criminal cases. Although rarely used in criminal cases, we find it conceded by courts and writers to be an appropriate remedy in criminal prosecutions as well as in civil actions. Judge Cooley, in a note to Blackstone’s Commentaries, says: Tn this chapter Sir W. Blackstone has considered only the modes by which a judgment may be reversed by writ of error brought in a court of appeal, and has stated that this can only be done for error in law. There is, however, a proceeding to reverse a judgment by writ of error in the same court, where the error complained of is in fact and not in law, and where of course no fault is imputed to the court in pronouncing its judgment. This writ is called the writ coram nobis, or coram vobis, according as the proceedings are in the king’s bench or common pleas, because the record is stated to remain before us (the king), if in the former, and before you (the judge), if in the latter, and is not removed to another court. In this proceeding it is of course necessary to suggest a new fact upon the record from which the error in the first judgment will appear; thus, supposing the defendant, being an infant, has appeared by attorney instead of guardian, it will be necessary to suggest the fact of his infancy, of which the court was not before informed.’ In the notes to Jaques v. Cesar, 2 Saunders, 100, the early English eases are cited, showing the scope, character and effect of the writ. The common law doctrine is also discussed in Bacon Abridg., title Error; Comyns’ Digest, title Proceeding in Error; 2 Tidd’s Practice, 1136;
7
Robinson Pr., 149; Stephen Pl, 118. It is recognized in many of the States as forming a part of the law; it is so held in Alabama, Holford v. Alexander, 12 Ala., 280 ; in Arkansas, Adler v. State, 35 Ark., 517; S. C., 37 Am. R., 48; in Iowa, McKinney v. Western, etc., Co., 4 Iowa, 420 ; in Kentucky, Meredith v. Sanders, 2 Bibb., 101; Duff v. Combs, 8 B. Mon., 386 ; Combs v. Carter, 1 Dana, 178 ; in Maryland, Hawkins v. Bowie, 9 Gill & J., 428; Kemp v. Cook, 18 Md., 130 ; in Michigan, Teller v. Wetherell, 6 Mich., 46 ; in Mississippi, Fellows v. Griffin, 9 Sm. & M., 362; Keller v. Scott, 2 Sm. & M., 82; Land v. Williams, 12 Sm. & M., 362; in Missouri, Galloway v. Nifong, 1 Mo., 223 ; Ex parte Toney, 11 Mo., 661 ; Powell v. Gott, 13 Mo., 458 ; in New York, Higbie v. Comstock, 1 Denio, 352 ; Maher v. Comstock, 1 How. Pr., 175 ; Smith v. Kingsley, 19 Wend., 620 ; in North Carolina, Roughton v. Brown, 8 Jones, 393 ; in Ohio, Dows v. Harper, 6 Ohio, 518 ( 27 Am. Dec., 270 ); in Pennsylvania, Wood’s Ex’re v. Colwell, 34 Pa. St., 92; in Tennessee, Hillman v. Chester, 12 Heiskell, 34; Patterson v. Arnold, 4 Cold., 364 ; Wynne v. Governor, 1 Yerger, 169 (24 Am. Dec.,
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448); Crawford v. Williams, 1 Swan., 341; in Texas, Mills v. Alexander, 21 Texas, 154 ; Moke v. Brackett, 28 Texas, 443 ; Giddings v. State, 28 Texas, 732 ; and in Virginia, Reid’s Adm’r v. Strider’s Adm’r, 7 Grat., 76.
“It is declared to be a part of the judicial procedure of the United States, Pickett v. Legerwood, 7 Pet., 144 ; Strode v. Stafford, 1 Brook. (U. S. C.), 162; United States v. Plumer, 3 Clifford (U. S. C.), 1. In Pickett v. Legerwood, supra, it is said: ‘The cases for error coram vobis, are enumerated without any material variation in all the books of practice, and rest on the authority of the sages and fathers of the law.’ Our text writers agree in holding that the remedy exists, unless superseded or abolished by statute. Powell Appellate Proceedings, 107; Curtis Co., section 178; Freeman Judg., section 94. The author last named says: ‘The writ of error coram nobis is not intended to authorize any court to review and revise its opinions; but only to enable it to recall some adjudication, made while some fact existed which, if before the court, would have prevented the rendition of the judgment, and which, without any fault or negligence of the party, was not presented to the court.’
“It is suggested in the argument of the counsel for the State that even at common law the writ eoram nobis had fallen into disuse in criminal cases, and should not be regarded as part of the common law procedure. All of the cases which discuss the question treat the rule as correctly laid down in the books of practice, and they all agree in declaring it applicable to criminal as well as civil cases. In the celebrated and bitterly contested case of Begina . v. O’Connell,. 7 Irish Law, 261, note 357, the writ was allowed, and no question made as to the right of the accused to demand it. The case was carried by appeal to the House of Lords, where, after a stubborn fight, the judgment of the Irish court was reversed; but no doubt was intimated as to the right of Daniel O’Connell and his associates to sue out the writ. O’Connell v. Regina, 11 Clark & F., 155, opinion p. 252. In United States v. Plumer, supra, Judge Clifford examined the authorities with care," and held that the writ would lie in criminal as well as in civil cases (vide opinion, p. 59). It is true that the writ was denied in that case, not, however, because it was not a proper procedure in a court of competent jurisdiction, but because the court to which the application was made had no jurisdiction at all in criminal cases. In Adler v. State, supra, the writ was held to lie in a case in some of its features remarkably like the present. But we will not extend the discussion by commenting on the cases. A somewhat careful and full investigation has enabled us to find many cases affirming the right to the writ in both civil and criminal cases, where there is no statute abolishing or superseding it, but none denying that it exists at common law and in jurisdictions where there is no overruling statute.
“It is held in well considered cases, that, although there is a statute regulating proceedings in criminal cases, the writ is not abolished
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unless the statute expressly or hy implication abrogates it or supplants it hy some other remedy. This is so held, with respect to writs coram nobis, hy Marshall, C. J., in Strode v. Stafford, supra, and it is so held in Cooke, Petitioner, 15 Pick, 234. In speaking of the claim that the writ coram nobis can not exist under the statute, Cowen, J., said, in Smith v. Kingsley, 19 Wend., 620 : ‘There is no statute expressly and in terms repealing its power, nor any which does so by necessary implication. Mere silence or omission to regulate proceedings upon such a writ will not operate as a repeal. The power, therefore, remains as at common law, except as to the mere form coram nobis resident; because the fiction of the record remaining before the King himself, is gone. We therefore have lost the name of the writ, but nothing niore. Camp v. Bennett, 16 Wend., 48 / This doctrine is in harmony with the well established principle that the statutory procedure blends with that of the common law.' Mr. Bishop says: ‘The statute .must' be construed by the common law and in harmony with it, and by the common law must its defects be supplied/ Statutory Crimes, section 366; Bishop Written Laws, section 142. This author also quotes with approval from our own ease of Walker v. State, 23 Ind., 61 , saying: ‘Again, where the common law procedure has been to a greater or less extent superseded by statutes, “the old rules are,” as observed in an Indiana case, “continued in force, not inconsistent with the criminal code, and so far as they may operate in aid thereof/” There are many instances in which our court has resorted to common law methods of procedure where the statute is silent on the subject. Marcus v. State, 26 Ind., 101 ; Bell v. State, 42 Ind., 335 ; Hardin v. State, 22 Ind., 347 ; State v. Berdetta, 3 Ind., 185 (38 Am. R., 117); Wall v. State, 23 Ind., 150 ; Burk v. State, 27 Ind., 430 . But it is useless to multiply citations; there are comparatively few criminal cases that do not contain some reference to common law principles. What, for instance, would be our situation upon the question of self-defense, if we could not look beyond our statute to ascertain what it is, and what the procedure is in eases where it is an essential element? In civil procedure the rule is firmly settled that there are cases where relief will be granted, although there is no specific 'remedy provided by statute. Bigelow Frauds, 170; 3 Whart. Crim. Law, 3222; Freeman Judg., section 99; Dobson v. Pearce, 12 N. Y., 156 ; Molyneux v. Huey, 81 N. C., 106 ; Jarman v. Saunders, 64 N. C., 367 ; Huggins v. King, 3 Barb., 616 ; Stone v. Lawman, 28 Ind., 97 ; Johnson’s Adm’rs vv. Unversaw, 30 Ind., 435 ; Nealis v. Dicks, 72 Ind., 374 . That courts possess inherent powers not derived from any statute is undeniably true. Among these powers are the right to correct their records so as to make them speak the truth, to pass upon the constitutionality of statutes, to prevent the abuse of their authority or process, and to enforce obedience to their mandate. If it were granted that courts possess only such rights and powers as are conferred hy statute, they would be mere creatures of the Legislature, and not independent departments
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of the government. They are not mere creatures of the Legislature, but are coordinate branches of the government- and^ in their sphere not subject to legislative control. Deutschman v. Town of Charlestown, 40 Ind., 449 ; Cooley Const. Lim., 114, 116; 2 Story Const., 377.
“It is our opinion that the courts have the power to issue writs
in the nature
of the writ coram nobis, but that the writ can not be so comprehensive as at common law, for remedies are given by our statute which did not exist at common law—the motion for a new trial and the right of appeal—and these very materially abridge the office and functions of the old writ. These afford an accused ample opportunity to present for review questions of fact, arising upon or prior to the trial, 'as well as questions of law; while at common law the writ of error allowed him to present to the Appellate Court only questions of law. Under our system all matters of-fact reviewable by appeal, or upon motion, must be presented by motion for new trial, and can not be made the grounds of an application for the writ coram nobis. Within this rule must fall the defense of insanity as well as all other defenses existing at the time of the commission of the crime. Within this rule, too, must fall all cases of accident and surprise, of verdicts against evidence, of newly discovered evidence, and all like matters.
“Duress not only avoids all acts, but it also relieves from responsibility for crime. 1 Archbold Crim. Pr., 52; 1 Hale P. C., 56; 1 East P. C., 70. Necessity justifies many things as against’an accused; it justifies the discharge of a jury, although the trial has been duly entered on, because of the illness of a judge or juror; it dispenses with essential averments in indictments. 1 Bishop Crim. Proc., 493; Bescher v. State, 42 Ind., 480 ; Mixon v. State, 28 Am. R., 695. In Commonwealth v. Jailer, etc., 7 Watts, 366 , a prisoner applied for a discharge under the provisions of a statute which entitled an accused to a trial or discharge at the second term of the court after his arrest. He had been afflicted with -smallpox, and was recovering, but as the report says, ‘His aspect was so loathsome as to spread a general panic/ The application for a discharge was refused, the court saying: ‘There is no doubt that necessity, either moral or physical, may raise an invariable exception to the letter of the habeas corpus act. A 'court is not bound to imperil life in an attempt to perform what was not intended to be required of it/ If, as against an accused, the government may invoke the doctrine of necessity and compulsion, may it not be invoked by him for the purpose of relieving himself from a plea wrung from him by fear of immediate and violent death? The assignment asked does not go to the extent of discharging without a trial, but the appeal is for relief from a plea of confession and for the award of an opportunity for trial. The application of the appellant brings to the knowledge of the court a fact which, if known, would have prevented a conviction; and all the cases agree that where a new fact is suggested which would have prevented judgment, the accused is entitled to the writ coram nobis. We can not conceive it possible—possible, we mean,
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in a legal sense, and under legal principles—that a court, with knowledge that a plea of guilty is forced from a prisoner by fear of death, would imprison him for life without a hearing or trial.
“Duress is a species of fraud. Mr. Bishop says: ‘The common law doctrine is familiar, that fraud vitiates every transaction into which it enters.’ 1 Bishop Crim. Law, 1008. It is a principle of wide application, that a judgment obtained by fraud may he annulled. The fraud, however, must be as to some act in securing jurisdiction, or as to something done concerning the trial or the judicial proceedings themselves; the rule has no application to cases of fraud in the transaction, or matters connected with it, out of which the legal controversy arose. Bigelow thus states the rule: ‘The fraud referred to must consist either in facts relating to the manner of obtaining jurisdiction of the cause, to the mo.de of conducting the trial, or to the connection of the judgment, or in facts not actually or necessarily in issue at the former trial.’ Bigelow Frauds, 170. ‘Fraud,’ said DeGrey, C. J., in Rex v. Duchess of Kingston, 20 How. St. Trials, 355, 544, ‘is an extrinsic, collateral act; which vitiates the most solemn proceedings of courts of justice. Lord Coke, says, it avoids all judicial acts, ecclesiastical or temporal.’ There is, indeed, no diversity of opinion as to the effect of the fraud, for it is agreed on all sides, as stated by Mr. Freeman, in speaking of judgments, that ‘Upon proof of fraud or collusion in their procurement they may be vacated at any time.’ While there is entire harmony upon this point, there is some diversity of opinion as to whether a judgment can be collaterally impeached for fraud. Freeman Judg., sections 99, 132; Wiley v. Pavey, 61 Ind., 457 . In his discussion of this subject Mr. Bishop says: ‘In criminal cases there is no question, that, when fraud is practiced at the trial by the prosecutor, producing a conviction, a new trial will be granted on the prayer of the defendant.’ 1 Bishop Crim. Law, section 1009. As against the accused the rule goes much further, for it is held that if the judgment of acquittal is obtained through his fraud it is an absolute nullity. 1 Archbold Crim. Pr., 352:, cases cited in; 1 Whart. Crim. Law, section 546; 1 Bishop Crim. Law, section 1010; 3 Whart. Crim. Law, section 3222; Commonwealth v. Dascom, 111 Mass., 404 ; Commonwealth v. Alderman, 4 Mass., 477 ; Halloran v. State, 80 Ind., 586 ; Watkins v. State, 68 Ind., 427 (34 Am. R. 273). In the ease under consideration the fraud, it is true, is not that of the prosecutor, but it is such a fraud as deprived the appellant of the constitutional right to a fair trial by an impartial jury, and surely this entitles him to some relief, and under the elementary maxim, that ‘there is no right without a remedy,’ there must be some power to grant relief, and some remedy by which it can be secured. The practice in cases similar to this is unsettled (we have found no case exactly like it) and we think that the rule indicated by Mr. Bishop is the correct one. ‘When a proceeding,’ says this author, ‘is entirely fraudulent, having no sound part.whatever, there is no collateral or direct effect to he given it; it
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is as though it had uot been; only a party to the fraud is not permitted to rely on this imperfection. But practically most frauds relate only to some particular. in the proceeding—not violating, therefore, the whole.’ 1 Bishop Crim. Law, section 1011. The fraud in this case extends only to the plea and subsequent proceedings, and the appellant may, therefore, be rightfully put to trial upon the original indictment. . . .
"Judgment reversed, with instructions to vacate the judgment upon the indictment against the appellant; to permit him to withdraw the plea of guilty, and plead to the indictment; to put him upon trial in due form of law upon the indictment preferred against him, and for further proceedings in accordance with this opinion.
"The clerk will issue the proper orders for the return of the appellant.”
Of course, it is not to be doubted that the writ of certiorari was a proper writ at common law. Under our statute, if there is no procedure provided, we are then relegated to the common law for rules of procedure. See White’s Ann. Code of Crim. Procedure, article 26. There are other rules or matters of procedure at common law that may perhaps be as equally efficacious as the writ of certiorari such as the writs coram nobis, coram vobis, and other writs, but that does not limit this court under its jurisdictional authority to either or anyone of these writs. Its jurisdiction may be exercised under the authority granted in the Constitution and provided by article 26, supra, by resort to any writ, “affidavit or otherwise” to exercise its jurisdiction. In this case the writ of certiorari has been invoked in connection with the writ of habeas corpus. Besort to the writ of certiorari to bring up records, or to perfect records in this court, is a very usual and most common practice. This writ is continually granted for these purposes, and has been during the present term of the court in several instances. This has been the rule in Texas in its history at all times as shown by statute and decisions. It has been used in this State for the purpose of setting aside void judgments, and even for the purpose of nullifying judgments obtained for the nonobservance of fundamental rights. A case in point is Burns v. LaGrange, 17 Texas, 415 . In that case Burns was tried and convicted in a municipal court' without a jury for violating a city ordinance. The court held the certiorari was a proper proceeding, entertained the case, and set aside the judgment. A similar holding is found in Collan v. Wilson, 127 U. S., 540 , which was a habeas corpus proceeding.
In this case the conjoining of the two writ's, habeas corpus and certiorari, have been employed or sought to be employed. If this should prove ineffective, resort to any or all other writs can be and ought to be had if necessary to a proper administration of justice as known to the rules of law either constitutional or statutory. I do not purpose here to digress to a discussion of the difference between justice, that is justice in the abstract as compared with justice under a due and proper
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administration of justice under the rules of the law. Duncan v. Magette, 25 Texas at' p. 245. This distinction may be as broad as that to be observed between the actions of mobs on one hand and the procedure under the proper administration of law in all well ordered courts on the other hand. This distinction permeates all organized governments, and is the fundamental basic principle of all constitutional and statutory law in our form of government. The appellate jurisdiction of this court is usually exercised by giving notice of appeal in the trial court, and have notice entered of record there, but this may not be, and is not the only manner in which the jurisdiction of this court may be invoked. The Constitution expressly otherwise provides. This has been recognized in the history of our jurisprudence. The accused is not legally bound to appeal his case. He may do so if he chooses. The matter is lodged in his discretion. Hor can he be deprived of that right by the act of others. It is beyond the authority of the court to prevent it. Concert of action of those in authority can not place him where or surround him with circumstances under which he can not exercise it. Mob violence or threats to take his life or do him personal injury can not deprive him of such right. “Duress not only avoids all acts but it also relieves from responsibility. 1 Archbold Crim. Pr., 52; 1 Hale P. C., 56; 1 East P. C., 70.” That duress was present in this case at the time of, just before, and just after the sentence is so clearly shown it may be said to be indisputable. Hot only so at that stage of the case, but from the beginning of the court it is shown by every act, ruling and order of the court throughout the different stages of the trial. The judge’s reasons for liis acts and rulings show beyond any cavil that from his first appearance at Pecos City until he sent' the prisoner away to Midland, 'after passing sentence, manifests the dangerous presence of the mob, and the judge’s conviction of the danger to the prisoner. The facts coming from the judge by reason of these acts and orders, his own testimony, the acts and words and conduct of the crowd gathered about and around his court, and especially as it surrounded appellant’s counsel when they were breathing out threats to hang appellant and his counsel if notice of appeal was given, the presence of the crowd in the courthouse at the time of the presentation of the motion for new trial and passing of sentence; the failure of counsel to give notice of appeal under facts already stated, the sending of the prisoner away as soon as possible after the sentence, all show the imminent danger and the pressing duress to and upon the prisoner, as well as to his counsel, which must have been known to and recognized by the judge. If testimony can show danger of death and mob violence, it is in this record and practically undisputed, and if duress can be shown, it is here manifest. He may be guilty as the crowd thought and as the judge believed, yet that is no answer as to his right to have his ease reviewed on appeal. Duress may be proved by positive evidence, as shown in this record, or it may be as well shown by circumstantial evidence. The facts justi
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fied the prisoner and his counsel in not giving notice of appeal, if it should be conceded that he did not ask the court to enter such notice. The law does not require the prisoner to be hanged as a prerequisite to exercising his right of appeal. Hanging would be a positive defeat of the very right. The right of appeal would not then be of any practical benefit to the defendant, and worse than useless and absurd legally. In the nature of the case the prisoner having been deprived of his right of appeal under pain of death to himself and his counsel, either or both, the law does not leave him without remedy. The Constitution and the Legislature confer authority upon this court to resort to any and all writs known to the common law, if statutory remedies have not been provided. The rights at common law under article 26 of the Code of Criminal Procedure then become statutory remedies in Texas. The writ of certiorari was and is a well known rule of procedure both in Texas and at common law. Burns v. LaGrange, 17 Texas, 415 ; Moore v. Hardison, 10 Texas, 467 ; Timmons v. Lacy, 30 Texas, 116 . A similar holding was had in Callan v. Wilson, 127 U. S., 540 ; Ex parte Anthony, 5 Pike, 359; Hays v. Pope Co., 5 Pike, 308; Walpole v. Ink, 3 Ohio, 143; Bob, a slave, v. State, 2 Yerg., 173 ; Ex parte Tarlton, 2 Ala., 35 ; O’Bryan v. Dunn, 5 Texas, at page 577. The case of Timmins v. Lacy, supra, is a well considered case, and shows beyond any question that in this State the writ of certiorari is a familiar procedure by which jurisdiction is exercised. See also Hail v. Magale, 1 Texas App. Civil, 490; Sheldon v. San Antonio, 25 Texas Sup., 178; Smithwick v. Kelly, 79 Texas, 564 . It can also be used as a direct proceeding to set aside a judgment. Linch v. Broad, 70 Texas, 92 ; Adoue v. Gonzales, 22 Texas App., Civ., 73, 54 S. W., 367 . Sickness or calamity preventing an appeal has been held a. ground for relief by certiorari. Ahrens v. Giesscke, 9 Texas, 432 . A party need show no merit to be relieved by certiorari against a void judgment or one without jurisdiction: Short v. Ramsey, 18 Texas, 397 . • Returns and affidavits are proper to be considered on hearing for certiorari. Aycock v. Williams, 18 Texas, 393 ; Jones v. Hold, 22 Texas, 379 ; Kechring v. Schneider, 60 S. W., 277 ; Constitution, article 5, section 5.
Hnder this last statement, that is, in regard to returns and affidavits being proper to be considered on hearing for certiorari, will say that this is common practice in this court to perfect records or to bring up matters that are omitted part's of the records in court below, but omitted from transcripts here, and this writ of certiorari can be made available whether the case is one on habeas corpus or on appeal, and it is the universal practice in this State whenever it becomes necessary to do so, to use writ of habeas corpus and writ of certiorari conjointly. This seems to be the practice almost universally. 11 Cyc., 915 and 916; Ex parte Yearger, 8 Wall., 85 (U. S. Sup. Ct.); Armous v. Com., 6 Serg. & Rawle., 245. Lack of rules of procedure is of small consequence, .in fact no consequence, when it comes to exercising jurisdiction by certiorari. 11 Cyc., 801-813. Certiorari may be allowed
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for the refusal t'o allow an appeal or a refusal to approve an appeal bond, or where an appeal is improperly dismissed, or a special appeal is overruled. 6 Cyc., 762. Certiorari is. allowed where one has lost his right of appeal through matters beyond his control. 6 Cyc., 762-763 (d), and certiorari also lies where a right has been lost through fraud, contrivance or culpable conduct of the adverse party, or in case of illness, death or calamity. 6 Cyc., 765. Certiorari is also available where a party has lost his right of appeal thrpugh the act of the judge where the defendant is guilty of no laches. 6 Cyc., 764. It is also correct that matters dehors the record are admissible for the purpose of showing the loss of the right of appeal, and other writ and affidavits may be used for this purpose. This is expressly provided by the Constitution. Article 5, section 5; Harris v. Hopson, 5 Texas, 529 ; 6 Cyc., 769, 790, 828, 830, 831, 827; Walton v. Pearson, 82 N. C., 464 . See also 6 Cyc., 823, 819 to 822, 826, 827, 828, 830, 831. A common practice in this court is to resort to the writ of habeas corpus where there is want of jurisdiction in a lower court, or where the judgment of such court is void. This is authorized wherever the trial court was without jurisdiction of the subject matter, of the person, or has rendered a judgment on the facts which ought not to have been rendered under such state of facts. Ex parte Degener, 30 Texas Crim. App., 566; Goodfellow v. State, 53 Texas Crim. Rep., 471 ; Ex parte Garza, 50 Texas Crim. Rep., 106 ; Ogle v. State, 43 Texas Crim. Rep., 219 ; Ex parte Taylor, 34 Texas Crim. Rep., 591 ; Ex parte Kearby, 35 Texas Crim. Rep., 634 ; Ex parte Wilson, 39 Texas Crim. Rep., 630 ; Ex parte Duncan, 42 Texas Crim. Rep., 661 . This rule has been followed invariably since the rendition of the Degener case, supra. The writ of certiorari is the common, usual and almost invariable procedure to bring before this court records where the jurisdiction has attached and the records are incomplete, or when it is deemed proper to bring up proceedings from the lower or trial court. This practice has been used during the present term of this court and within the last month. That the two writs—-habeas corpus and certiorari—may be conjoined is evident from what has been said already under the usual practice in this State and in the Federal courts. Ex parte Yearger, 8 Wall. (U. S. Sup. Ct.), 85; 11 Cyc., 915, 916; Armous v. Com., 6 Serg. & Ralle, 245. This is expressly authorized by the Constitution of this State. Article 5, section 5.
Duress having prevented the giving or the entry of notice of appeal, did not oust the jurisdiction of this court, and its jurisdiction can be asserted by any means or rule of procedure provided by statute, and in the absence of statutory provision, then by any procedure known to common law and this is the rule under the terms of the Constitution. From this viewpoint this court is not only authorized to issue the writ of certiorari and habeas corpus, but under the facts and the record disclosed here would he recreant to the high trust conferred and high duties involved and imposed upon it by the Constitution and statutes
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of the State, if it failed to do so. Again, after notice of appeal is given and entered of record, the trial court -would be powerless to pass sentence of death upon the prisoner, and if done under such circumstances such sentence would be void for want of jurisdiction. See eases already cited. Notice of appeal in that instance .would oust, the trial court of all further jurisdiction until the Court of Criminal Appeals had disposed of the prisoner’s appeal and the mandate had been sent down. Duress being sufficient to justify or excuse accused from giving notice of appeal, he stands in the same relation as his case would stand if the notice in the first instance had been given and duly entered, for duress not only voids all acts but also relieves from all responsibility for crime. The ease from this attitude authorizes either writ or both writs, habeas corpus and. certiorari. The sentence being void on account of duress, authorizes and demands relief by habeas corpus, and the case would stand as if notice of appeal had been entered of record, so far as attaching the jurisdiction of this court is concerned. The sentence being void, the writ of habeas corpus was authorized, justified and required. Certiorari may and can he made effective as an original proceeding to bring the case before us on appeal when notice of appeal has been given, if record is not sent up-. Duress which would prevent notice of appeal does not oust this court’s appellate jurisdiction and such writ would be equally as effective to bring up the record. The refusal of judges to permit such entry, or overpowering mob influence and threats, can not vacate the jurisdiction of this court, nor can it constitute a waiver or failure to give notice on the part of the accused. So far as the law is concerned, the notice is given and will attach the appellate jurisdiction of this court, and the certiorari is the old time and familiar procedure to bring the case before the court. The citizen may not and can not be deprived of his right of appeal by the unwarranted or illegal acts of others, though the acts be those of courts, judges or mobs. Appellant, though a Mexican, and a citizen of a foreign country, is entitled to full protection of the laws of this Republic, State and Federal, as though he was a native or naturalized citizen of this State, or the Republic of the United States. This is guaranteed by our State Constitution and laws. It is vouchsafed by the treaty between the United States government and the Republic of Mexico. It is called for by the treaty of peace and comity and the rules of international law which governs the treaty between the two countries on those subjects. It is vouchsafed by the dictates of common justice, controlled by rules of law, and must be enforced under rules of fundamental justice. The law of the land, due process of law, ought to he held to be supreme in this State rather than the dictates of lawless crowds and violent mobs.
Another phase of the case from the standpoint of duress in depriving defendant of his legal rights in connection with a denial of appeal should be noticed. The application for certiorari filed November 3, 1911, and considered by this court on the trial of and in connection
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with the writ of habeas corpus, alleges deprivation of the legal rights under the rulings of the trial court considered in regard to failing to obtain bills of exception and statement of facts. By being deprived of the right of appeal, he did not secure bills of exception to the admission of evidence he deemed hurtfully illegal, nor was there a statement of facts obtained and filed in the trial court. In regard to the question of duress as applicable to the question of confession to which objection was urged in the trial court, it is shown that appellant was arrested for the homicide, and was in charge of a very considerable crowd of citizens of the county, and a confession was sought to be drawn from him. He protested his innocence, and it was suggested by Mr. Mayfield, a member of the crowd, that if he did not make a confession they would hang him. He requested them to let him see his mother and father, Mayfield said, Ho, you are not worthy of it. When the sheriff came a confession was extorted from him while under arrest. This confession was made to the sheriff on a promise by the crowd not to hang him until the sheriff should come. This, however, was not used upon the trial except in part. The defendant was carried thence to the county jail. There he was kept until the next morning when the judge ordered him to be carried away to Midland. So far as this record is concerned, he saw no one and talked to no one except the district attorney, and it may be the jailer. The district attorney went to his cell and procured from him a confession. This was on the morning after the arrest. The body of deceased was found the day before this confession was made to the district attorney. This confession was introduced in evidence, and to the introduction of which exception was reserved. Among other things, the crowd that surrounded and threatened the lives of counsel as well as their client also denied applicant the right to have “the questions of law passed on by the Court of Criminal Appeals.” This is shown by the evidence of Judge Parker, and his statement, as I understand this record, is not controverted, nor is duress denied from any source, as I understand the evidence. Under this state of facts applicant was denied, through the illegal acts of others, the right to have a statement of facts and the bills of exception reserved to admitted testimony, become a part of the record. Where this is shown the invariable rule in this State is to reverse the judgment to the end that the accused may have his case passed on by the Appellate Court in the light of the true record and correct transcript of the proceedings and rulings had upon the trial. This is done that the citizen may have such fair and legal trial as is guaranteed by our Constitution and the laws of the State and whenever and wherever the convicted party has been deprived of his legal rights by the acts of others, or by no fault or negligence on his part he is entitled to a reversal. This rule applies with especial force to such conditions as deprive him of his statement of facts and bills of exception. Trammel v. State, 1 Texas Crim. App., 121; Ruston v. State, 15 Texas Crim.
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App., 336; Ruston v. State, 15 Texas Crim. App., 377; Johnson v. State, 16 Texas Crim. App., 372; Henderson v. State, 20 Texas Crim. App., 304; Sara v. State, 22 Texas Crim. App., 639; Bryans v. State, 29 Texas Crim. App., 247. The eases are so numerous sustaining this rule it is deemed unnecessary to cite others; however, I will cite the cases of Edwards v. State, and Parker v. State, decided at the present term of this court. Affidavit has always been held a proper practice proving these deprivations of rights, and constitutes one of the means of ascertaining the conditions of the record in regard to these matters. This is not exclusive, however; that it is not the fault of the appellant in regard to these matters may, however, be shown “otherwise.” The objective point in all such matters is the truth, and if it is shown the appellant has been deprived of his bills of exception and statement of facts, either or both, without fault on his part, a reversal will follow. This is but one of the simplest rules of ordinary justice. This is the rule as well in the Federal court, and it applies also in those courts in a habeas corpus proceeding, and necessarily it would apply under the writ of certiorari. Ex parte Royal, 117 U. S., 241 ; Ex parte Virginia, 100 U. S., 339 ; Yick Woo v. Hopkins, 118 U. S., 356 , 373 to 374; Ex parte Sicbold, 100 U. S., 371 ; Virginia v. Rives, 100 U. S., 313 ; Ex parte Clarke, 100 U. S., 399 ; Removal Cases, 100 U. S., 457 ; Strauder v. West Va., 100 U. S., 303 ; Tenn. v. Davis, 100 U. S., 257 ; Callan v. Wilson, 127 U. S., 540 . The denial of the evidence or bills of exception is a denial of one of the most substantial legal right's of an accused person.
The duress in this case, so far as a confession is concerned, began with the arrest of defendant. When importuned for a confession at the time he was arrested he stoutly denied his guilt. Surrounded by an excited crowd Mayfield demanded of him that' he confess under threat of death penalty by hanging then and there. Defendant asked to see his father and mother. Later on the sheriff came, and under these circumstances applicant made an oral confession to him. This, however, was not admitted on the trial for the reason I suppose that it was not in writing as our statute requires. Code . Criminal Procedure, article 790. The details of the surrounding circumstances, acts and statements of the enraged multitude is not thought necessary to repeat. Thence he was taken to the county jail and placed in confinement. That he had no friends is evidenced by the facts, the feeling against him being so acute that the witnesses stated that “one hundred percent of the people believed him guilty.” That he had no counsel at the time of the written confession is made evident by the testimony of District Judge Isaaeks, as well as by the evidence of his subsequently appointed counsel, Judge Parker. He was placed practically “incomunicado.” He was in jail in charge of the sheriff, or his jailer. The sheriff is also identified as being one of the crowd present when they surrounded Parker and Estes at the time their lives were threatened, and a. promise extorted from Parker that an appeal would not be
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consummated. The only communication revealed by this record between appellant and anybody after he was placed in jail, and before he was carried to Midland, was had with the district attorney, and at the time the district attorney obtained the confession which was used- as evidence on the trial before the jury. From that time until he was brought back for his trial Friday morning he was beyond hope or possibility of conferring with his counsel. A distance of one hundred miles separated them, and appellant it seems was not aware of the fact' that he had counsel, for counsel was not appointed until after Judge Isaaclcs sent him away from Pecos City. This confession may have been entirely inadmissible. Without the bill of exceptions we are unable to say what would have been the conditions surrounding its introduction, or its having been signed. Without this confession and the agreed statement of facts adduced on the trial before this court, and forming a part of this case, there is very slight evidence to show guilt, if in fact there is any that would justify a verdict. A few horse tracks, and perhaps a few human foot tracks constitute the main additional facts. The foot tracks are not shown by the evidence to have been made by defendant, and, so far as the record goes, it was not even undertaken to connect the tracks on the ground with defendant’s feet. The horse tracks are not shown to have been made by an -animal ridden by defendant outside of a statement by the sheriff that appellant admitted riding the horse, but this confession was made while he was under arrest, was an oral unwarranted statement, and while in charge of the sheriff. There was no attempt to show this statement was voluntarily made. Such confessions under our Code Criminal Procedure, article 810, are inadmissible.
In the case of Flagg v. People, . 40 Mich., 706 , the prisoner was put in jail and shackled, thence he was carried to the office of an attorney and behind bolted doors was told' the best thing he could do was to confess. The confession was written out and signed by him. The court reversing the case on the ground of duress, said: “Legally and morally a more serious' offense was committed in the efforts to extort a confession than the respondent was guilty of, even if his confession was true, as it was a perversion of the process of the law, a poisoning of the foundation of justice.” The facts show in this case the defendant was in jail, under the circumstances heretofore stated, fresh from the threats to hang him by the crowd at the time he was arrested if he did not confess. He was placed in jail without friends or advice prior to or at the time of the confession, and what was said to him outside of the face of the written confession is not disclosed by this record, or by any witness who testified. The district attorney took the confession in the jail, but it does not show that anybody was present except himself and the prisoner. We understand, as a matter of course, that the jail doors were securely closed and bolted. The district attorney does not show the surrounding circumstances at the time or what was said and done by him, or what inducements were or were
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not held out by him to induce the confession, if any. When the deprivation of appeal came, the bills of exception were not prepared, and could, therefore, not be a part of the record. There is no legal way to secure' these bills under the above condition. The statement of facts was not prepared and filed in the trial court, nor were bills of exceptions. The defendant, it is evident, was under duress of body and mind from the time of his arrest until the sentence was passed on him on Saturday evening. This is not a question of doubt from this record. In addition to this, the defendant was a boy, a minor, and legally under the guardianship, care and control of the court. The rights of minors have always with our people and under all of our laws and system of jurisprudence been placed more particularly under the strictest guardianship and care of the court. The courts have been required to look more carefully to the rights of minors' and to protect them from wrongs. We deem it unnecessary to cite authorities. It is so thoroughly en-grafted into all of our system of jurisprudence that it is known of all intelligent men.
With reference to the confession, in Paris v. State,
35
Texas Crim. Rep., 82 , this court held that if the confession was not freely and voluntarily made it could not be used, and a failure to charge that if the confession was not freely and voluntarily made and without fear or duress, constituted reversible error, without bill of exceptions or requested instructions by the accused. It was also held that when the facts were not disputed, their legal effect became a question of law, and should be determined as such question as t'o “due process of law” and “the law of the land.” The most liberal construction for the State ever placed on article 723 of White’s Code of Criminal.Procedure in any opinion was by Judge Henderson. He was also the writer of the opinion in the Paris case. With all the liberality placed on that article in favor of the State, it was not sufficiently liberal to prevent the reversal in the Paris case for the reason stated. It was held that the error “was calculated to injure the rights of the defendant.”
2. Another proposition is asserted and urged rather strenuously, that is, that the purported special term of court was not legal and was not in compliance with the statute. Without restating facts already mentioned in the previous portion of the opinion, it may be advisable here to state the record shows that Judge Isaacks wrote out what he termed his order calling the special term. This order was written either on July 24 or July 25. There are several transcripts brought up from the trial court showing these matters, and they are in conflict as to the two dates. Hone of the transcripts indicate that any notice was either ordered by the judge or given. The orders recite the fact that he called a term to meet on July 24 at 2:00 p. m. One of these orders was dated July 25 calling the term for July 24 at 2:00 o’clock p. m. One of them is dated July 24 reciting the fact that he called the court to meet on that date at 2:00 o’clock p. m. These conflicts are not explained, nor sought to be explained. In regard to the notice
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given of the calling of the term, if in fact it may be called a notice of any sort, the following is shown by the oral testimony of Judge Isaacks on the trial of the habeas corpus before this court: “Q. The convening of the court was the only notice given of the special term, was it not? A. The spreading on the minutes. Q. You simply issued the order convening the court? A. Yes, sir; had the clerk spread it upon the minutes of the court and notify the sheriff that court was in session. Q. What was the purpose of the haste in convening this special term? A. Because murder had been committed and I deemed it wise to find the murderer if possible and have him punished as speedily as might be in accordance with law. Q. Eor what purpose did you deem it wise? A. Because I think crime should be punished as speedily as possible.”
These orders make it manifest as does the entire record that the term was called only and exclusively for the purpose of indicting and trying this applicant. This is emphasized by the oral testimony of Judge Isaacks. Judge Isaacks also testified that other serious murders had been committed in that county, but this is 'the first instance in which lie had ever ordered a special term of the court, or ordered that a prisoner should be carried away from the county for safety, or to avoid the mob, and it is the first instance of calling a special term of court for the purpose of speedily trying a murder case in the history of the 70th Judicial District over which he now presides and has presided since the creation of the district. It is apparent from this record that no notice was given by the judge of the convening of what he calls a special term of court. Our statutes, articles 1113 to 1116, inclusive, Devised Civil Statutes, require that notice shall be given of the calling of special terms of court. The Act of 1905, enacted -for the purpose of amending the previous Acts, in nowise conflicts with the former statutes in regard to this question. The later Act authorizes notices to be given in vacation, whereas the former Act requires it to be given in term time. There are but three cases decided by this court undertaking to construe these Acts of the Legislature. McIntosh v. State, 56 Texas Crim. Rep., 134 ; Young v. State, 49 Texas Crim. Rep., 541 ; and Ex parte Boyd, 50 Texas Crim. Rep., 309 . The question of necessity for giving notices did not arise in either of those cases, and could not have arisen for the simple reason that notice was given in each case of the, convening of the court, specifying the time and place. In two of the cases the special term was held only for the purpose of pronouncing sentence upon the accused—Young’s case and Boyd’s case. In each case the accused had been convicted of murder. The eases had been appealed, the judgments affirmed, and the mandates had been certified to the trial court. Special terms of the court were called only for the purpose of pronouncing sentence against the parties. Under-that condition of the record there was no issue to be tried by the court, save with the possibility that there might he some reason suggested why the sentence of the law should not be pronounced, but in any event notice
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was given in each ease, specifying the time and place at which the sentence would be pronounced. In McIntosh case the defendant was tried for and convicted of murder. Notice of special term was given by posting same at courthouse door as well as publishing in newspaper. In the instant case no notice of any sort was given.
It is universally conceded in each of the States and the Federal government, that it is essential to due process of law that a person whose life, liberty or property is to be affected must' have notice that he is being proceeded against, and he must be given an opportunity to be heard.
Furthermore, if ample time to prepare defense is not given there is no dire process of law and the judgment is a nullity, and also failure to allow such time is an abuse of discretion. State v. Collins, 29 So., 180 ; 81 American, 150; 104 La. Ann., 530 ; Helton v. Commonwealth, 87 S. W., 1073 ; Hensley v. Same., 74 S. W., 677 .
Nor is it necessary that a motion for continuance be made in order for a person to claim that due process of law required that he be given reasonable time to prepare his defense (State v. Scott, 34 So., 479 ; 110 La. Ann., 369 ); when such time is not given the judgment is void.
In the Helton case, supra, twelve days was declared by the court' as insufficient time to prepare a defense in a murder case. In the Hensley case, supra, five days was held to be too short a time in which to prepare defense in a murder case. Yet in the case at bar, inside of seven days after the offense was committed and inside of six days after the defendant was arrested, a special term of court had been convened and the ^defendant had been taken a distance of one hundred miles for safety on one day and returned that one hundred miles on another day and tried, convicted, and sentenced to death.
This is so fundamentally true that no lawyer or court would for a moment deny the proposition. If a man is not legally informed of the fact that there is a case against him pending in court, a judgment against him would be a nullity. If he had no notice whatever that a term of court was being held in which proceedings were had or to be had concerning his rights, a judgment rendered against him in such proceeding would be equally void. We have had terms of court fixed by statute since the days .of Henry V. Mills v. Com., 13 Pa. St. (1 Harris), 627. Terms of court have always been fixed by the legislative department, and such terms when so fixed are called regular terms. These terms of-court being created by legislative Acts, the world takes notice of them, and the courts have judicial information of them. If, therefore, a man had a case pending in court, he is held to have knowledge of the law which fixes the time when his case can or will be reached, or as is usually" the case, at the next general term of the court. These general terms are, therefore, specified, and by due diligence he can ascertain when his case is to be tried, and these general terms are fixed by legislative acts. In the absence of statute, the weight of authority is that the court can not prolong its terms or hold special
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terms in all of those jurisdictions where there are general laws and general terms of the court. Wightman v. Karsner, 20 Ala., 446 ; Flanagan v. Borg, 64 Minn., 394 ; Mills v. Com., 13 Pa. St. (1 Harris), 627; Atkinson v. State, 122 Ala., 95 ; Archer v. Boss, 2 Seammon (Ill), 303; United States v. Melbourne, 4 Cranch C. C., 552; Commercial Bank v. Galloway, 6 Howard (Miss.), 515; Reams v. Kearns, 45 Tenn. (5 Colwell), 217; Stephens v. People, 38 Mich., 739 ; United States v. Cornell, Federal Cases, 14868.
An indictment returned at a term not authorized by law, and all acts at that term are nullities. Brewer v. State, 39 So., 927 ; Hall v. State, 30 So., 422 ; 130 Ala., 45 . If therefore a case is filed against a party and he notified of it, whether by service of civil or criminal process, he in that case being construed to know the law, knows when proceeding will be taken in that particular case against him, i. e. the next regular term, but with a special term the rule is entirely different. Unless there is some sort of notice given showing when the particular case is to be tried, neither the party nor the general public can ascertain anything about the sitting of the court, if it be in the power of the judge to convene such term without notice. See Butcher v. Brand, 6 Iowa, 235 . It is believed to be the almost universal rule of law in these States, that where a special term of court is to be held under order of the judge, that notice thereof must be given in some form of publication either by notices posted or by newspaper publications, or both. This is the rule for the reason that it would be depriving a party of his rights without due process of law if he were to have his case disposed of by the court and the court having given nothing but instantaneous notice of the holding of the term. In the case at bar the applicant was in jail at Midland iyhen the order of Judge Isaacks was supposed to be spread upon the record in Pecos, a distance' of one hundred miles. There may be some doubt, when these conflicting transcripts are compared, when this order was written and entered upon the minutes, but one thing. is not uncertain, but emphatically is certain, that is, the prisoner did not have access to the court until after the indictment was found and until the day of his trial, and had no opportunity to object to any of the steps that were taken against him to his great injury prior to his being brought back Friday morning from the Midland jail. The appointment of counsel for him by the judge took place after the indictment was found, yet in this case it is apparent from the evidence that “one hundred percent of the people” of Beeves County had prejudged his case and found him guilty before the indictment was returned. The jury commissioners were appointed to select the grand and petit juries in his absence, the grand jury was empaneled in his absence, he then being, as before stated, in the Midland County jail, one hundred miles distant, and being then even without counsel. It was impossible for him to make a challenge to the array of grand jurors, or to any one of them on account of their prejudice against him. The right to challenge the en
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tire grand jury or any particular member of it in a case of this character is unquestioned, yet the defendant neither had counsel nor an opportunity to object to any or all of said grand jurors. Lack of counsel under circumstances destroys due process of law. See Miller v. U. S., 57 Pac., 836 . Had he been in the Pecos County jail where the alleged court was in session, he could at least have had his request recognized by the court to be brought before the court when the grand jury was being impaneled, but Judge Isaaeks had rendered this impossible by separating him a distance of one hundred miles from where he was impaneling said grand jury. This was one of the results of the calling of the special term without publication of notice. Nobody knew nor could they know that the judge was going to hold a special term at some specified- time except those who perchance were told by him or who happened to be at the courthouse when the judge came .in to start the special term of court. Judge Isaaeks’ oral testimony manifests the fact that he did'not give notice. He states that he ordered the clerk to spread his order upon the minutes of the court and notify the sheriff. Just why the sheriff was notified and no one else is not explained. The court was called exclusively for the purpose of indicting and trying the applicant. He seems to have been the only interested party in the performance that was then being enacted and to be enacted, and yet the judge sent him so far away that it was a matter of impossibility that he could know or that he did know anything about it, or what was going on about the court. Many cases hold that the question of holding court out of proper time is jurisdictional, and consent can not confer jurisdiction. Mills v. Com., supra; Atkinson v. State, 122 Ala., 95 ; Beams v. Kearns, 45 Tenn. (5 Colwell), 217. But we deem it unnecessary to cite authorities on this proposition. The record should and must show on its face all the facts, that is, all the essential things to the holding of a special tern! of court, and this includes the notice. Atkinson v. State, 122 Ala., 95 ; Flanagan v. Borg, 64 Minn., 394 . The right to a public trial by an impartial jury as guaranteed by the Constitution can not be taken away by legislation. Stephens v. People, 38 Mich., 739 . This should equally apply to a prejudiced grand jury, for it is a substantial right for the defendant to be present at the time the grand jury is impaneled. The statute guarantees him the right to be present if he desires to be, and it is held, and legally correct, to deprive a person of any substantial right is illegal, and to deprive him of a substantial notice so that he and his counsel are not present or can not be present, is a violation of the due process of law and of fundamental justice.
That special terms of the court may be held, if properly organized, is justified by the terms of the Constitution under valid acts of the Legislature, but this authority is not guaranteed under the idea of its being arbitrary or autocratic, nor is such a construction to be placed on this provision of the Constitution which would authorize a judge to despotically use such authority to oppress the citizenship of the State,
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The authority to hold special terms of the court must be in accordance with fundamental justice, and it must be with due deference and regard to the legal rights of our people. To hold that a judge can hold a special term of court without any notice to the parties to be affected by it either where the case is pending, or where they are to he instituted during the special term without notice of the fact that a term will be- holden, would be to inaugurate in these latter days that relic of oppression and tyranny known as the “Star Chamber.” Our -Constitution and the acts of the Legislature should not receive such construction as would bring about such result. Such construction should be placed upon constitutional provisions and statutory enactments that do not lead to injustice, wrong and oppression. Such rules of interpretation should be adopted and enforced as will insure to our people what the -Constitution and frame work of this government intended should be—fairness of trial in a public and open manner, and with due notice before their lives, liberty and property are sought to be taken. This was clearly not done in the trial of applicant before the lower court.
3. It is urged that this conviction is violative of the fourteenth amendment of the Constitution of the United States, which provides that no State shall deprive any person of life, liberty or property without due process of law, or deny any person equal protection of the law. It is also insisted that the conviction is violative of international law as well as contrary to and against the provisions of existing treaties between the United States and the Eepublic of Mexico, to wit: the treaty of March 24, 1908, article III (U. S. Document No. 5, Sixty-First Congress, Second Session, 1909-1910, volume 47, the same being volume 1, page 1205 of Treaties and -Conventions), and the treaty of Guadalupe Hidalgo (id. page 1107, articles I and XXVI). These treaties are necessarily binding obligations on the high contracting parties, and, therefore “the supreme law of the land,” by explicit terms of article 6, section 2 of the Federal Constitution. That article and. section reads as follows: “The Constitution and laws of the United States which shall be made in pursuance thereof and all treaties' made or which shall be made under authority of the United States shall be the supreme law of the land, and the judges in every State shall be bound thereby, and anything in the -Constitution or laws of any State' to the contrary notwithstanding.” This language would seem all sufficiently explicit and mandatory to need no explanation, and require no explanation, and it would further seem to require strict observance at the hands of all courts, State and Federal, as well as all departments of the governments, State and Federal. The judiciary, whether State or Federal, is bound in trial of eases where questions arise under treaties or international law to take cognizance of and consider such questions. These questions must' necessarily be decided in accord with and under the requirements of the provisions of existing treaties and principles of international law, These treaties constitute a part of
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the supreme law of the land, and are expressly declared to be superior to State Constitutions and laws if there should be a conflict. These provisions are binding upon State courts and all departments of State government. It is, therefore, the duty of the judiciary of the State to enforce the provisions of treaties and rules of international law in accordance with the spirit of the treaties or the rules of international law when occasion demands, and in doing so will be guided by the interpretation thereon placed by the Supreme Court of the United States. It is, however, the case, and has been in our history, that these questions have also been construed and enforced by the political department's of the Federal government, usually through the medium of diplomatic relations. The interpretation thus placed on treaties and international law have been regarded as binding and correct. The political as well as the judicial department have at all times been controlled and actuated by strict adherence to fairness and uprightness in dealing with the citizenship of other nations when their rights either of life, liberty or property have been at issue, either in courts or other departments of our government. This has been the idea or the rule which has actuated and controlled departments of our government whether the questions arose under the terms of treaties or rules of international law. It has at all times been insisted by our government for her citizens that they shall have fair trials under the laws of nations when they are being tried or their property or lives are affected in the foreign governments, and our government in all of its department's have conceded the same fairness to the citizens of other nations when brought before governmental department in any matter affecting life, liberty or property. We have demanded this at the hands of other nations, and with equal fairness have conceded the same to the citizenship of other nations within our boundaries. It has also been maintained as violative of such law or treaty for either government to deny the citizen justice by fair trial by any department invested with authority to determine the matters at issue. The treaties of Mexico and the law of nations are essentially binding upon both countries if good faith is to be the criterion for the enforcement of those agreements. Good faith ought' to be presumed and not be required to be proved as a fact. If bad faith is shown, or the stipulations of the treaties or rules of international law are disregarded, this would constitute such a breach of good faith as would constitute cause for annulling the treaties and breaking off friendly relations.
Applicant’s contention is that he has been tried with
undue haste,
without due process of law, denied justice at the hands of the trial court, and that the acts and rulings of that court show discrimination against him. He further insists that he has been denied the protection of the provisions of the fourteenth amendment to the Federal Oonstituion, and was denied a fair trial under the law of nations, and under good faith guaranteed by the treaties, all of which are reviewable in his case by the Federal courts and Federal government, and
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all of which demand at the hands of the trial court strict observance and fair dealing under the terms of the Constitution heretofore quoted. Under the law and the facts his contention seems legal, correct and justified. Article 3, section 2 of the Constitution of the United States provides that "the judicial power shall extend to all cases of law and equity arising under the Constitution and laws of the United States, and treaties made or which shall be made under their authority.” As heretofore seen, treaties when made, "shall,” like the Constitution itself, “be the supreme law of the land and the judges in every State shall be hound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding^’ is the unmistakable language employed in article 6, section 2 of that instrument. That the Federal courts and government of the United States has jurisdiction over cases arising under treaties and the law of nations, of course, is not debatable. This doctrine has been upheld from the inception of our national life as evidenced by the constitutional provisions above quoted, and has never been seriously questioned in our judicial history. United States v. Estrella,
4
Wheat., 298 ; United States v. Ortega, 11 Wheat., 467 ; Bylew v. United States, 111 U. S., 258 ; Ames v. Kansas, 111 U. S., 449 ; Hilton v. Guyot, 159 U. S., 113 ; The Paquete Habana, 175 U. S., 677 ; Miller v. The Resolution, 2 Sallas, 1; La Abra Silver Mining Co. v. United States, 175 U. S., 423 ; Tenn. v. Davis, 100 U. S., 257 .
It is, therefore, apparent from what' has been said that the judges and courts of the State must and will determine these Federal questions when raised before 'them, and in doing so are to follow and be bound by the interpretation of such treaties and laws of nations as announced by the Supreme Court of the United States. This court is called upon in this case to determine whether the terms of the treaties between the United States and Mexico have been violated in the prosecution, trial, conviction and sentence of applicant, and also whether the rules of procedure applicable to the law of nations have been set at naught in his trial. If so, then his conviction and sentence were obtained without due process of law, and this would entitle him to relief.
Undue Haste Violates Laws of Nations and Treaties: As shown by the above authorities, the conducting of a judicial trial with undue or unseemly haste, is a denial of justice which will justify international intervention under the- laws of nations. The position of the United States Government as to the international law involved in this matter is very definitely set forth in the correspondence between Mr. Hamilton Fish, Secretary of State of the United States, and Mr. Cushing, our Minister to Spain, December 28, 1875. That was a communication in reference to the Virginius outrages in Cuba. In that communication, Mr. Fish said:
"This Government has not claimed that citizens of the United States, who place themselves in foreign jurisdiction, carry with them the par
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ticular immunities surrounding trial in their own country, nor has it insisted that peculiar advantages to the accused, such as trial by jury and habeas corpus, are or must be a part of the jurisdiction of foreign countries.
“But we- have claimed that by
international law,
and by the usages and customs of
civilized nations,
a trial at law must be conducted
without unseemly haste,
with certain safeguards to the accused and in deference to certain recognized rights, in order to mete out justice.
“It certainly can not be said that an accused person has all the benefits of our treaty, where the defender appointed

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3931973. Public record. Not legal advice.