ERROR TO THE COURT OF APPEALS OF THE STATE OF TEXAS.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
Plaintiff in error was indicted by the grand jury of Tarrant County, Texas, for that, in that county, on July 6, A.D. 1889, he "with force and arms, did, unlawfully and with his express malice aforethought, kill and murder one B. C. Evans with a pistol, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State;" and, having been arraigned and pleaded not guilty, was tried, found guilty of murder in the first degree, his punishment
fixed by the jury at death, and judgment rendered accordingly. Two successive motions for a new trial, setting up twenty-nine alleged grounds therefor, were made, considered and overruled. An appeal was thereupon prosecuted to the Court of Appeals of the State of Texas, and thirty-six errors assigned. The Court of Appeals affirmed the judgment, and application for a rehearing was made, heard and denied. The opinions upon the original and second hearings were delivered by Judge Hurt and are both sent up as parts of the record.
During the trial, in the motions for a new trial, in the assignment of errors in the Court of Appeals, and in the application for a rehearing, no suggestion of a Federal question was made; nor was any right, title, privilege or immunity under the Constitution or any treaty or statute of the United States specially set up or claimed by the plaintiff in error. Notwithstanding, a writ of error from this court was allowed by the Presiding Judge of the Court of Appeals, and the record was filed here January 22, 1891. The case now comes before us on a motion to dismiss or affirm.
Seven errors are assigned. The first, second and third question the validity of the Penal Code of the State of Texas, in the matter of its enactment, and insist that the Federal Constitution was violated by these proceedings taken thereunder. We have already disposed of this objection in In re Duncan, Petitioner, ante, 462. The fourth error assails the indictment, and is covered by our decision in Caldwell v. Texas, 137 U.S. 692. The fifth error relates to the action of the trial court in refusing a continuance, and the sixth to the action of that court in respect to that refusal, upon the motion for a new trial. Under article 560 of the Code of Criminal Procedure of the State of Texas, the application for continuance is addressed to the sound discretion of the trial court, and if it be overruled and the defendant convicted, it is provided "if it appear upon the trial that the evidence of the witness or witnesses, named in the application, was of a material character, and that the facts set forth in said application were probably true, a new trial should be granted, and
the cause continued for the term, or postponed to a future day of the same term." Willson's Crim. Tex. Stats. pt. II, p. 154. It was for the Court of Appeals to determine whether the discretionary power of the trial court had been so abused as to amount to error, and whether its reconsideration, upon the motion for a new trial, or the refusal to continue, called for revision. Sections 2169, 2171, 2186, and 2187, pt. II, of Willson's Criminal Texas Statutes, give a large number of cases upon the subject. The matter was for the state courts to decide, and their action presents no Federal question. The Fifth and Sixth Amendments of the Constitution of the United States, referred to by counsel in the assignments of error, are restrictive of the powers of the Federal government and not restraints upon the States, and in the statute and its administration we find no denial of due process of law or of a right secured to plaintiff in error by that instrument.Caldwell v. Texas, 137 U.S. 692; Leeper v. Texas, ante, 462. The seventh error is to the effect that as the Penal Code of Texas (Art. 607) provided "if the jury shall find any person guilty of murder, they shall also find by their verdict whether it is of the first or second degree; and if any person shall plead guilty to an indictment for murder, a jury shall be summoned to find of what degree of murder he is guilty," and the Code of Criminal Procedure, (Art. 676,) that "the jury are the exclusive judges of the facts in the cause, but not of the law in any case, they are bound to receive the law from the court and be governed thereby;" and as in this instance, the trial judge read a charge to the jury which did not treat of murder in the second degree, a new law was thereby promulgated and enforced in violation of the Constitution of the United States prohibiting the making or enforcing of any ex post facto law, and inhibiting any State from denying the equal protection of the laws; and it is suggested in argument that due process was also denied.
Articles 677, 678, 679, 680, 681, 682, 683 and 684 of the Code of Criminal Procedure (Willson's Cr. Tex. Stats. pt. II, p. 192) provide that the trial judge shall deliver to the jury a written charge setting forth the law applicable to the case distinctly,
but not expressing any opinion as to the weight of evidence, nor summing up the testimony; and that "this charge shall be given in all cases of felony, whether asked or not;" that it is beyond the province of the judge to discuss the facts or use argument, but it is his duty to state the law of the case plainly; that either party may ask written instructions, which the court shall either give or refuse, with or without modification, but if modified, it shall be done in writing; that the general charge, as well as the instructions given or refused on request, shall be certified by the judge and filed among the papers in the case and constitute part of the record; that the court is not required to charge in actions for misdemeanor, except upon request, and when requested such charges shall be given or refused, with or without modification, as are asked in writing; that no verbal charge shall be given in any case whatever, except in cases of misdemeanor, and then only by consent of the parties; that when charges are asked, the judge shall read to the jury only such as he gives; that the jury may take with them in their retirement the charges of the court after the same have been filed, but they shall not be permitted to take with them any charge, or portion of a charge, which has been asked and which the court has refused to give.
Article 685 is as follows: "Whenever it appears by the record in any criminal action, upon appeal of the defendant, that any of the requirements of the eight preceding articles have been disregarded, the judgment shall be reversed; provided, the error is excepted to at the time of the trial." The charge of the court in this case was given in writing, as required by the statute, and no exception whatever was taken to it, nor any additional instructions asked by the plaintiff in error. In the motion for a new trial and before the Court of Appeals the question was raised that the court should have instructed upon the law of murder in the second degree. By Article 777 of the Code of Criminal Procedure, one of the causes ...