
    No. XVI.
    Republic of Texas v. Thomas I. Smith.
    (See .)
    
      Appeal from Travis County.
    
    
      
      .—Republic v. Smith, p. 407.
      Appeal is a matter of right guaranteed by the Constitution. Forbes v. Hill, Dal., 486; Bradley v. McCrabb, Dal., 504; Smyrl v. State, 40 T., 121; Eppstein v. Holmes, 64 T., 560; Cornelius v. City of Dallas, 37 T. Cr., 309. Where the Legislature has failed to provide a mode of appeal, the court may establish one. Wheeler v. State, 8 T., 228; Teas v. Robinson, 11 T., 774; Tucker v. Anderson, 25 T. Supp., 155; Simmons v. Fisher, 46 T., 126; Bishop v. State, 43 T., 390. With us writ of error and appeal are concurrent modes of appealing. Andrews v. Andrews, Dal., 427; Magee v. Chadoin, 44 T., 488.
    
   HANSFORD, Justice.

From the record in this case it appears that Smith, the appellant, was indicted at the spring term of the District Court for Travis County for “holding a faro bank, for the purpose of playing at faro and inviting and receiving bettors,” and at the fall term was tried, and the jury returned a special verdict of “guilty of dealing faro in the city of Austin, previous to 1840, and after the first of May, 1839.” Upon the return of this verdict the appellant, by counsel, moved in arrest of judgment, upon the ground that Austin, where the offense was alleged to have been committed at the time charged in the bill of indictment, was within the territorial limits of Bastrop County. The motion was overruled by the court; and the appellant was ordered by the court to pay a fine in accordance with the statute passed May 26, 1837, entitled “An act to suppress gambling,” of $500, together with costs of prosecution, and to remain in custody of the sheriff until the sentence of the court was complied with. From this judgment of the district court the appellant prayed an appeal to this court, and charges error in the court below in overruling the motion in arrest of judgment.

Before we proceed to the discussion of the question as to whether it was error or not in the court below in overruling the motion in arrest of judgment, we will meet and dispose of a preliminary question of paramount consideration, and that is, has the defendant in a criminal prosecution, upon an indictment in the district court, the right of an appeal to the Supreme Court? We think that he has. We believe that such a right is in accordance with the genius and spirit of our institutions and secured to him by the Constitution and laws of this country. And it must, we think, be conceded by everyone that it is a question, whether considered with reference to the infancy of our jurisprudence yet to be perfected by subsequent adjudication and the wisdom of the Legislature, or the almost untried harmony of our institutions, political as well as judicial, which have as yet been but slightly explored and partially developed, or the sacred character of the rights to the citizens, as one involving the most grand and solemn considerations.

The word “appeal” comes from the civil law; and the nature and operation of an appeal, in a technical sense, can not be a subject of doubt in proceedings governed by that law. Indeed, it is sometimes used to denote the nature of appellate jurisdiction, without any regard to the particular mode by which a cause is transmitted from an inferior to a superior jurisdiction. In this sense it is used by Blackstone when he speaks of the Court of Exchequer as a court that hath no original jurisdiction. So also the same elegant writer denominates the House of Peers of England as the Supreme Court of the Empire. See 3 Black. Com., 56.

There are some other senses in which the word occurs in the common law, which we may pass over in silence, as they have no application to the present inquiry.

Appeal (“appellatio” in the civil law) is defined—“ab mferioris judi-éis sententia ad superiorem provicare”—the removal of a cause from the sentence of an inferior to a superior judge; or as Blackstone has expressed it, “a complaint to a superior court of injustice done by an inferior one.” Calveus has collected the definitions given by many learned civilians, but they all resolve themselves in the above. See 3 Black. Com., 312; Calveus’ Lexicon, “Appellatio;” Shepherd’s Abridgement, “Appeal.” Each of these definitions accurately states the meaning but not the mode or effect of an appeal.

The remedy by appeal—as known and practiced in England—is in a great -measure confined (for I speak not of appeals of death and of robbery, and of summary proceedings before magistrates) to courts of equity, admiralty, and ecclesiastical jurisdiction, in all of which no jury intervenes; and in each of those courts the judge is in general the sole arbiter both of the law and the facts, and the mode of proceeding is borrowed almost exclusively from the civil law.

And it is undoubtedly true that in courts proceeding according to the course of the civil law, an appeal from an inferior to a superior tribunal removes the whole proceedings, and usually, though not invariably, opens both the law and the facts for re-examination. 3 Dallas, 321; 5 Cranch, 281.

By the eighth section, fourth article of our Constitution, we find the Supreme Court of Texas clothed with appellate jurisdiction only, which shall be coextensive within the limits of the Republic; but neither in that section or elsewhere in the Constitution do we find its appellate jurisdiction restricted to any particular class or character of actions. We search in vain in that instrument for any such restriction. It can not be found. But on the contrary, in the Declaration of Eights, it is emphatically declared that all courts shall be open, and “every man for any injury done him in his lands, goods, person or reputation, shall have remedy by due course of law.” Dec. of Eights, sec. 11.

We think it clear then that the right of appeal from the district court to the Supreme Court in criminal prosecutions, as well as in civil actions, is secured to the defendant in such prosecution by the Constitution. But if we were of opinion that any doubt could be entertained of the clear and indefeasible right to an appeal in criminal cases, by the Constitution (and indeed we have none, but rest it upon that instrument alone), that doubt would in a great measure be removed by the act entitled “An act to establish and organize the Supreme Court, and to define the powers and jurisdiction thereof.” In the third section of that act there is a legislative declaration of the right of appeal in criminal as well as civil cases: “And the said Supreme Court shall have jurisdiction over and hear and determine all pleas, plaints, motions and controversies, civil and criminal, which may be brought before it.” And in the sixth section the same right of appeal is clearly and indisputably recognized in language which none can mistake, in the following words: “The sentence of the Supreme Court, in all criminal prosecutions brought before such court from any other courts, shall be executed in like manner in all respects as if such sentence had been rendered in the court wherein the prosecution originated; and the sheriff of the proper county shall be charged with the execution of such sentence.” Hence we see that immediately after the organization of our government, a legislative declaration of the constitutional right of appeal in criminal cases was made. But it was contended by the district attorney for the Third Judicial District and by the Attorney-General, that if indeed the Supreme Court had jurisdiction of criminal cases and could hear and determine all manner of pleas, plaints, motions and controversies, civil and criminal, yet it could exercise that jurisdiction only by writ of error, and not by appeal; that the common law having been adopted by the Constitution in criminal proceedings became a part of that instrument, and by that law a cause was removed from an inferior to a superior tribunal by writ of error only and not by appeal; that by a writ of error, the errors of law alone could be examined in the Supreme Court, and that the usual effect of an appeal from an inferior tribunal being one that opened the facts as well as the law for re-examination, could not be admitted as a right to the defendant in the district court in a criminal prosecution, because no such right was ever known to the common law of England.

We frankly admit that we search in vain in the common law for an instance of an appellate court retrying the cause upon the facts; and we know that the only mode known to the common law of removing a cause from an inferior to a superior tribunal was by writ of error. But we can not admit that in adopting the common law, the Convention intended thereby to adopt irrevocably the practice of the common law in criminal proceedings, and tie down the Legislature of the country to the common law course of proceedings. For we see that the very framers of the Constitution itself, after adopting the “common law as the rule of decision in criminal proceedings/’ have gone on and made considerable innovations in the practice of that very code which they had just adopted. At common law, in criminal cases, the defendant had not the right to have compulsory process to compel the attendance of witnesses, etc. He had not the right to be heard by counsel, except upon collateral or incidental questions; he had not the right of the writ of habeas corpus; nor did he, indeed, have the right of the benefit of testimony in his favor under the sanction of an oath; all of which is secured to the citizen by our Constitution and are innovations in the practice of the common law. It is our opinion, then, that the Convention intended only to adopt the common law, to use their own language, “as the rule of decision” in criminal proceedings, and no more of the forms and peculiar writs of that code than might be found necessary to carry out the objects contemplated by that adoption. And surely the Convention never intended, when they inserted in the Constitution a provision creating an appellate court in criminal as well as civil cases, to deny the accused who might wish to appeal from the district court to the Supreme Court the right of having the facts of his case, as well as the law, opened to re-examination. We can not believe it. We decide then that the defendant in a criminal prosecution in the district court has the right of appeal to this court from the judgment or sentence of the court below, and to have the facts as well as the law, at his own election, opened for re-examination.

Having disposed of the preliminary question that the defendant in a criminal prosecution in the district court has .the right of appeal from the judgment of that court to the Supreme Court, and shown conclusive^, as we believe, that the Constitution has given the Supreme Court jurisdiction by appeal in criminal cases, we will next proceed to inquire whether it was error in the court below, in the case now under consideration, in overruling the motion in arrest of judgment. We will consider this decision of the district judge with an eye both to the law and the facts as shown by the record.

The motion in arrest of judgment was predicated upon the fact that the “dealing of faro, the offense charged in the indictment, was committed before the passage of the act entitled 'An act creating the County of Travis/ and within the then territorial limits of Bastrop County.” Numerous authorities were cited by the counsel for the appellant upon the trial of this case in the Supreme Court to show that it was error in the court below to overrule the motion; but we are unable to see their application in this case, and we are satisfied that they do not comprehend this particular case. The motion was bad in arrest of judgment and properly overruled. If the reasoning was good in support of the motion in arrest, it would be equally good under similar circumstances in Bas-trop County, because it was once called “Mina;” and in Harris County, because it was formerly called “Harrisburg.” The present Congress has passed an act dividing Red River County into Red River, Bowie and Lamar; and this doctrine, if it were correct, would protect from just punishment any offender, however flagrant his offense, if committed before the passage of the act dividing the county, unless the offense should have been committed within the new territorial limits of Red River County. The counsel for the appellant with candor admitted that the appellant could not have been properly indicted and tried in Bastrop, and contended that inasmuch as the act creating the County of Travis contained no special provision for such cases as that of the appellant, that he could not be legally tried and convicted in either county. But what, we will ask, was the intention of the Legislature in passing the act creating the county of Travis? Was it to protect the guilty from punishment? Was it to open the prison doors to them that were bound, without making any compensation to an injured community and the violated laws? Was it to encourage crime, and insult the majesty of the Constitution ? No! It had other motives and other intentions in view. Of this we are certain. And what they intended is binding upon us in expounding the law. And so we decide and affirm the judgment or sentence of the court below with costs, and order that this cause be certified to said court according to law, and that the sentence of said court be executed according to the record.

Affirmed.

Judges Hutchinson and Scurry say: “We concur in the result of this opinion; and that result, though attained by the members of the court upon some diversity of reasoning, etc., is to be the law of the case.”

Nothing on record to show any further concurrence.  