Full opinion text
HARPER, J. In this case it appears from the record on file that relator was on July 29, 1911, adjudged guilty of murder, and his punishment assessed at death, in the district court of Reeves county, and in accordance with the verdict of the jury and the judgment of the court he was sentenced to death on Friday, the 1st day of September, 1911. Subsequent to the date of conviction an application for a writ of habeas corpus was granted by Hon. W. L. DAVIDSON, presiding judge of this court, which writ was made returnable on October 4, 1911. By agreement of the parties the cause was set. for hearing before this court on November 3, 1911, on which date the application came on to be heard, and on which said date was filed with the papers in the case a petition for certiorari by relator. No order was made granting leave to file this petition and none requested by relator. The petition for a habeas corpus reads as follows: “Your petitioner, Leon Cardenas Martinez, Jr., makes this his application for a writ of habeas corpus, and for that purpose shows to the court that petitioner is held in custody by Sheriff T. C. Weir on commitment or other process to this affiant unknown, charging this affiant with murder. And this affiant further shows to the court: That heretofore on the- day of July, 1911,' this affiant was tried in the District Court in the county of Reeves on a charge of murder. That the verdict of the jury assessed the punishment of death against this affiant. That this affiant was represented by counsel appointed by the court, and employed by affiant’s father and friends. That the attorney appointed was Judge Parker of Pecos, Tex., and the attorney employed was Judge Estes of El Paso, Tex.; the initials of said attorneys being unknown to affiant. That when the jury returned the verdict of guilty assessing the death penalty, this affiant told his attorney that he wanted his ease appealed to your honorable court, to wit, the court of Criminal Appeals of the state of Texas. That this affiant was at once caused to be put in jail, and about two hours thereafter on the same day on which the jury returned the verdict as aforesaid, this affiant was brought back into court, and was required to stand up and be sentenced. That when the judge, to wit, Judge Isaaeks, pronounced the death sentence on this affiant, he asked affiant in substance if he had anything to say why the sentence of the law should not be pronounced on him, and this affiant replied thereto that he desired that the case be appealed to the Court of Criminal . Appeals of Texas, and instructed affi-ant’s attorneys to give notice of appeal and perfect the same, which they promised to do. That affiant was at once carried back to jail, and thereafter on the same day was carried by the sheriff to Midland county, and thence to Abilene, Taylor county, Tex., where he now is in custody. That affiant was not given an opportunity of the two days provided by law in which to file written pleadings, make a motion for a new trial', or otherwise perfect his appeal. That affiant never in any way in person waived said right, and never in any way agreed that the sentence might be at once passed upon him, as was done by the court, never in person waived his right of appeal, and never consented to the waiver by his attorneys. This affiant further states that he has been informed by his father, Leon Cardenas Martinez, Sr., a creditable person, and believes the' facts to be true, to wit, that said attorneys representing this affiant gave notice of appeal in open court as provided by law in said court in which this affiant was tried as aforesaid, and thereby perfected said appeal to the Court of Criminal Appeals of the state of Texas. And this affiant was further informed by his father that a crowd of angry and murderous men gathered around this affiant’s said attorneys, and told them in substance that, if.they did not withdraw said appeal, it would not be the Mexican who would be hung, but his two lawyers, and in this way intimidated and put said attorneys in fear of life, to such an extent that they withdrew .said notice of appeal, and waived the two ■ days’ notice. given by law in which to prepare motion-for a new trial and perfect the ■ appeal, • and agreed that this affiant might be at. once sentenced, which was done by said court on the samé day on. which the verdict of - the jury was rendered. This affiant further states that he was on the night following the conviction hurried off by the sheriff of Reeves county, to Midland county and thence to Taylor county to keep a mob of angry citizens in Reeves- county from killing this affiant, and he never had any opportunity to appear, before the district court-of Reeves county and perfect his appeal, or take an appeal in the way provided by law, further than was done by .his attorneys as heretofore stated on information. This affiant further states to the court: That he is only, a little past 15 years of age, that he is not 17' years of age, that he is not guilty of the charge preferred against him, and is not the person who committed the deed charged against this affiant in the bill of indictment on which this affiant was tried and convicted as aforesaid. That by mob violence he lias been denied the right of perfecting his appeal to this court as he has been informed and believes to be. That by mob violence the appeal which his attorneys perfected for him was caused to be dismissed without this affiant’s consent or knowledge.- That this affiant, a young and innocent Mexican, will be executed without a hearing on appeal unless this court enforces its jurisdiction in the way and manner provided by law. Wherefore this affiant prays that your honor grant him a writ of habeas corpus, commanding T. 0. Weir, the sheriff of Taylor county, Tex, who now holds this affiant in custody, to bring affiant be-fore your honorable body, that you may hear and determine whether or not your honorable body has jurisdiction by reason of the facts aforesaid, and to further determine whether or not this affiant is lawfully held in custody- and restrained of his liberty by said sheriff;. that affiant is unable by reason of his confinement to present a writ for habeas corpus to Judge Isaacks, judge of the ■district court of Reeves county, by reason of his confinement aforesaid, and by reason of a fear of being lynched by mob violence should he attempt so to do.” Upon a hearing of the writ of habeas corpus it was shown affirmatively that no notice of appeal was given. In fact, it was affirmatively shown that, when the motion for a new trial was overruled by the court, the district judge asked applicant’s counsel, ■Judge Parker, if he desired to give notice of appeal, when the judge was notified by the attorney that no notice of appeal would be given. Our Code Cr. Proc. art. 883, provides:. ‘‘An appeal is taken by giving notice thereof in open court and having same entered of record.” In construing this article as early as 1859, in the case of. Fairchild v. State, 23 Tex. 176, .Judge Roberts held that, unless this notice was given in open court and entered of record, the appeal could not be entertained. This has been'followed in an .unbroken line, of decisions' from that day until this; the last case in which this matter was passed on by this cour.t being the case of Offield v. State, 135 S. W. 566, and 568, in which the authorities are partially collated. In the case of Roan v. State, 65 S. W. 1068, this court says: “In death penalty cases, in order to clothe this court with jurisdiction, the appeal must be taken at the term at which defendant is tried and convicted. . Having failed to give notice of appeal during the term, appellant has forfeited his right of appeal to this court” — citing authorities. Appellant’s counsel,, the district judge, the district attorney, and the sheriff of the county all concur in the statement that no notice of appeal 'was given by relator or his counsel, and the record in this case shows affirmatively no notice of appeal was entered of record at the term at which he was tried. As shown above, the only grounds in the application for habeas corpus alleged for the writ were that notice of appeal had been given, and that without notice to this relator his attorneys had withdrawn the notice of -appeal, and dismissed same without his consent. By the evidence adduced on the .hearing in this court, this is shown not to be true. No other reason is assigned in the application why the writ should be granted, but in argument on the day of hearing relator’s counsel suggested other reasons, which we will hereinafter consider. Whatever may be the rule of procedure in other jurisdictions, in this state it has been and is the rule that the writ of habeas corpus cannot serve the office of an appeal; it was not designed to operate as-a writ of error or certiorari, and does not have their force and effect. The writ of habeas corpus does not deal with errors or irregularities which render proceedings voidable merely, but such only as render them absolutely •void. Such has been the established rule in this court from its inception. In the case of Ex parte Scwartz, 2 Tex. App. 81, this court quotes approvingly the following from Hurd on Habeas Corpus: “A proceeding defective for irregularity and one void -for illegality may be revised upon error or certiorari ; but it is the latter defect only which gives authority to discharge on habeas corpus. An irregularity is defined to be a want of adherence to some prescribed ruie or mode, of proceeding, and it consists either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unreasonable time or improper manner. Hurd on Habeas Corpus, 333, citing Tidd’s Pr. 434, and 3 Chitty’s Gen. Pr. 509.” This court has been called upon to pass upon this question in the past year, and the rule announced in the Scwartz Case is adhered to. Ex parte Cooks, 135 S. W. 139. See, also, Ex parte Oliver, 3 Tex. App. 345; Ex parte McGill, 6 Tex. App. 498; Ex parte Boland, 11 Tex App. 159; Ex parte Dickerson, 30 Tex. App. 448, 17 S. W. 1076; Ex parte Beeler, 41 Tex. Cr. R. 240, 53 S. W. 857; Ex parte White, 50 Tex. Cr. R. 473, 98 S. W. 850; Ex parte Crawford, 36 Tex. Cr. R. 180, 36 S. W. 92; Ex parte Keeling, 54 Tex. Cr. R. 118, 121 S. W. 605, 130 Am. St. Rep. 884; Ex parte Cassens, 57 Tex. Cr. R. 377, 122 S. W. 888. Not only has this been the unbroken rule of decision in this court- from its creation until the present date, but such was the rule in the Supreme Court in this state when it had criminal jurisdiction. Perry v. State, 41 Tex. 490; Darrah v. Westerlage, 44 Tex. 388. In all these cases numerous authorities will be found cited sustaining the rule, including decisions of the Supreme Court of the United States. ■ In Ex parte Reed, 100 U. S. 13, 23, 25 L. Ed. 538, Mr. Justice Swayne says: ' “The writ of habeas corpus cannot be made to perform the function of a writ of error. To warrant the discharge of the prisoner, the sentence under which he is held must not be merely erroneous and. .-voidable, but absolutely void.” And in Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717, Mr. Justice Bradley says: “The only ground on which the court will give relief on habeas corpus to a prisoner under conviction and sentence of another court is the want of jurisdiction of such court over the person or the cause, or some other matter rendering the proceedings void.” See, also, Ex parte Kearney, 7 Wheat. 38, 5 L. Ed. 391; Ex parte Watkins, 3 Pet. 193, 7 L. Ed. 650; Ex parte Milligan, 4 Wall. 2, 18 L. Ed. 281; Stevens v. Puller, 136 U. S. 478, 10 Sup. Ct. 911, 34 L. Ed. 461; In re Wo Lee (C. C.) 26 Ped. 476; In re Jordan (D. C.) 49 Fed. 242; Smith v. Whitney, 116 U. S. 177, 6 Sup. Ct. 570, 29 L. Ed. 601; In re Frederich, 149 U. S. 75, 13 Sup. Ct. 793, 37 L. Ed. 653; In re King (C. C.) 51 Fed. 435; In re Rowe, 77 Fed. 166, 23 C. C. A. 103. However, it is equally well settled that the writ of. habeas corpus will lie to secure a release where the proceedings are absolutely void. Ex parte Stein, 135 S. W. 136; Ex parte Kramer, 19 Tex. App. 123; James v. State, 21 Tex. App. 353, 17 S. W. 422; Mato v. State, 19 Tex. App. 112; Thompson v. State, 57 Tex. Cr. R. 437, 123 S. W. 612. This, rule is also the rule in the Supreme Court of the United States. Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29. L. Ed. 89. While no grounds are alleged in the application for ‘ habeas "corpus that would render the proceedings void, yet the evidence' disclosed' that relator was convicted at a' special term of the district court of Reeves county, Tex., and relator’s attorneys in their argument insist that chapter 83, p. 116, of the Acts of the 29th Legislature, which authorized special terms of the district court to be held, is unconstitutional. In the case of Ex parte Young, 49 Tex. Cr. R. 536, 95 S. W. 98, it is -held by this court that this act of the Legislature provides for the organization of a grand jury and the trial of new cases, and, this being true, the district judge could call a special term as he did in this case. The- constitutionality of this statute was specifically passed upon by this court in the case of Ex parte Boyd, reported in 50 Tex. Cr. R. 309, 96 S. W. 1079, and the statute authorizing special terms of the district court held valid under the provisions of article 5, § 7, of the state Constitution, which reads: “The Legislature shall have power, by general or special laws, to authorize the holding of special terms of the court, or the holding of more than two terms in any county for the dispatch of business.” In the latter' case the relator, Boyd, sued out a writ of error to the Supreme Court, of the United States to test the constitutionality of this act of the Legislature, which writ was-by that court dismissed for want of jurisdiction. Boyd v. U. S., 209 U. S. 539, 28 Sup. Ct. 570, 52 L. Ed. 917, citing Leeper v. Texas, 139 U. S. 462, 11 Sup. Ct., 577, 35 L. Ed. 225; Duncan v. Missouri, 152 U. S. 377, 14 Sup. Ct. 570, 38 L. Ed. 485; Gibson v. Mississippi, 162 U. S. 565, 16 Sup. Ct. 904, 40 L. Ed. 1075; Allen v. Georgia, 166 U. S. 138, 17 Sup. Ct. 525, 41 L. Ed. 949; Brown v. New Jersey, 175 U. S. 172, 20 Sup. Ct. 77, 44 L. Ed. 119; Layton v. Missouri, 187 U. S. 356, 23 Sup. Ct. 137, 47 L. Ed. 214; Rogers v. Peck, 199 U. S. 425, 26 Sup. Ct. 87, 50 L. Ed. 256. The constitutionality of this act was again assailed in the ease of McIntosh v. State, 56 Tex. Cr. R. 134, 120 S. W. 455, and it was again held that this'act of the twenty-ninth Legislature (page 116, Session Acts), providing for special terms of the district court to be held under an order of the district judge, is constitutional and valid. The facts show that the judge of the district court did call a special term of the district court, organize a grand jury, indict the appellant in that case, order jurymen selected and summoned as provided by the laws of this state, and that relator was tried at said special term. Said act provides: “Section 1. Where it may become advisable in the opinion of the judge of the district in which any county in the state of Texas may be situated, to hold a special' term or terms of the district courts therein, such special term or terms may be held. “Sec. 2. The judge of the district in which a county may be situated, in which it is deemed advisable by such judge that a'spe-' cial term of the courts should be held, may convene such special term of the courts at any time which may be fixed by him. The said judge may appoint jury commissioners, who may select and draw grand and petit jurors in accordance with the law; said jurors may be summoned to appear before said courts at such time as may be designated by the judge thereof; provided,'that in the discretion of the judge, a grand jury need not be drawn or impaneled. “Sec. 3. The grand jury selected as provided for in the preceding section shall be duly impaneled and proceed to the discharge of its duties as at a regular term of the court. “See. 4. Any person indicted by the grand jury impaneled at special term of the courts may be placed upon trial at said special term.” A special term of the district court of Reeves county, Tex., was ordered to be held at the county seat of said county by Hon. S. J. Isaacks, judge thereof, beginning on the 24th day of July, 1911, and to continue in session until adjourned by order of the court. A special grand jury was ordered to be selected, summoned,' and impaneled as provided by law, which order was duly entered upon the minutes of the court.' All necessary steps required by this act of the Legislature and the other provisions of the laws of this state are shown to have been complied with in convening said special term of the district court. When' court convened, a jury commission was selected in a legal manner, who proceeded to select grand jurymen and petit jurymen, who were duly summoned as shown by the evidence in this case. The grand jury at this term of the court, on the 25 th day of July, returned into open court an indictment, charging relator with the murder of Miss Emma Brown. The case was set for trial on July 28th, and a special venire was ordered drawn and summoned to appear on said date. Relator was served with a copy of the indictment, and a list of the jurymen summoned .within the time and in accordance with the provisions of our laws regulating such matters. When the case was .called for trial, no motion of any character was made by relator or his counsel bringing into question the legality of the proceedings. No motion for change of venue, or other motion was filed, other than a motion for a postponement or continuance on account of the absence of his mother. It being made known to the court that his mother was in the county, and her attendance on court could be secured, the motion was overruled, and, his mother appearing during the trial and testifying in the case, no exception was reserved to the action of the court in overruling the motion for a continuance. A jury is shown to have been impaneled in accordance with the provisions of the laws of this state, no complaint being made or reserved to the manner of their selection, and no complaint is now made that the jury thus selected by the state and the relator or his counsel were guilty of improper conduct during the trial, or had not truthfully answered the questions propounded. The provisions of the laws of this state, and especially article 673 of the Code of Criminal Procedure, are shown to have been fully complied with in impaneling the jury. A verdict was rendered finding relator guilty of murder in the first degree, and his punishment assessed at death. A motion for new trial was presented, and by the court overruled. Relator’s counsel notified the court that no appeal would be taken, when, in accordance with the verdict of the jury and judgment of the court, relator was sentenced. All orders, judgments, and decrees required by law are shown to have been entered in the minutes of the court. We hold that the proceedings are not void, but were regular in every respect, and, in accordance with the decisions hereinbefore cited, we hold that no relief can be granted to relator under the writ of habeas corpus herein by him sued out. However, on the day the habeas corpus was set for hearing, relator filed with the clerk of this court what is termed a “petition for certiorari.” No leave was requested and none granted by the court authorizing or permitting relator to file same, and it was not presented to the court or either judge thereof. However, as the death penalty was inflicted in this ease, we have carefully read the application. By this means it is sought to bring this case before us for review. At common law, we understand, a defendant had no right of appeal as given by the Code of this state; but, if upon conviction he desired to appeal his case, he presented to the appellate court a petition wherein he recited all things of which he complained, and pointed out specifically the matters In which he claimed the trial court erred to his prejudice. This appeal was not granted as a matter of right, but if the appellate court, upon viewing the petition, thought such errors were committed and the defendant probably suffered injury, or an improper verdict had been rendered, granted a writ of certio-rari commanding that the entire record be sent up that it might review the case. The petition must set out the injury or error complained of or the writ would not be granted. While the writer of this opinion has grave doubts as to the jurisdiction of this court to issue a writ of certiorari until jurisdiction has been conferred on this court by notice of appeal being given in the trial court, yet we do not deem a decision of that question necessary in this case. Section 5 of article 5 of the Constitution only confers power on this court to issue the writ of habeas corpus, and, under such regulations as may be prescribed by law, issue such other writs as may be necessary to enforce its jurisdiction. It is thus seen that hy the Constitution we are only given power to issue a writ of habeas corpus and no other writ in cases where this court has not obtained jurisdiction of the case, and it has been held by this court that, unless notice of appeal is given at the term at which a conviction is had, this court has no jurisdiction of the case. Clark v. State, 3 Tex. App. 338; Fairchild v. State, 23 Tex. 176; Hughes v. State, 33 Tex. 683; Solari v. State, 3 Tex. App. 482; Johnson v. State, 8 Tex. App. 671; Truss v. State, 38 Tex. Cr. R. 291, 43 S. W. 92; Hurlock v. State, 43 S. W. 992. If this court, under the Constitution and statutes of this state, has no power or authority to issue any writ other than the writ of habeas corpus until the jurisdiction of this court attaches, and the. jurisdiction of this court does not attach to any ease until notice of appeal has been given, then it would appear that, where no notice of appeal was given in the trial court, this court would not have the authority and power to review a case under the common-law writ of certiorari. If a person really gave notice of appeal, and the trial court willfully refused or inadvertently failed to enter such notice, or a person was prevented through force or fear from giving notice of appeal, we gather that jurisdiction would be sufficiently conferred upon this court that, upon application made in reasonable time, this court could and would issue a writ of mandamus compelling the entry of the notice so given or prevented from being given. Quesada v. State, 34 Tex. Cr. R. 116, 29 S. W. 473. Relator nor his counsel have made no such application to this court to have notice entered. As hereinbefore stated, the facts in this case show that no notice of appeal was given, and while this case may suggest reasons for conferring additional power and authority on this court to issue other writs, or for the Legislature to enact laws that will cause the jurisdiction of this court to attach in certain cases without notice of appeal in the trial court, yet this court has no power to legislate or enlarge its jurisdiction further than is conferred upon it by the Constitution or laws of the state. However, under all the authorities, it is held that a writ, of certiorari cannot be granted in vacation, nor in term time except upon order of the court, or by a majority of the members thereof, and no such order having been made, nor undertaken to be made, the decision of the question of whether this court, before obtaining jurisdiction of a cause, would have the right to issue a certiorari to bring a case before it for review, is not necessary in this case; the application itself not stating reasons sufficient and not pointing out errors that would authorize the issuance of the writ under the common law. But inasmuch as the death penalty has been assessed, and the entire record in the case has been filed in this court, we have carefully reviewed same, with the view that, if the record presented such a case that we felt relief should be granted, we would take up and decide the question whether or not we could issue the common-law writ to bring the case before us for review, and if so, if the merits of the case demanded it upon a proper application being presented to do so. If we decided we did not have the power to issue the writ, and an injustice had been done, then in that event to recommend to the Governor a reprieve until the Legislature could confer on us such power as would authorize us to act. In the petition for certiorari relator complains of the convening of a special term of court, and • the impaneling of a grand jury which indicted him; yet, as hereinbefore shown, this was done in accordance with the laws of this state, and relator recites nothing which he says was done in violation df the statutes of this state. The only other allegation in the application is that he was denied the right of an appeal to this court. As hereinbefore stated, no notice of appeal was given; but on the hearing hereof his attorneys testify that they were prevented from giving notice of appeal by the action of a number of citizens who approached them after the verdict had been rendered. To treat the case as if notice of appeal had been given, and this case was now before us on appeal, and we were passing on same, what does the record show? In his statement, Judge Parker, of counsel for relator in the trial court, says: “We made the following bills of exception in the case, and possibly some others which I do not now recall: When the state read the confession of the defendant, it read all of the confession, except that part of it where defendant said he was 16 years old. We objected to this on the ground that all of the confession should be read by the state. “The state proved by the official stenographer and his notes that the defendant,, while a witness on the stand in a former criminal ease, at Barstow, Tex., testified that he was 17 years old. We took a bill of exception to the court’s failure to limit this evidence as impeaching testimony. “The father and mother of the boy both testified, and after they had both testified as to where the defendant was born, the date of his birth, the number of children that had been born to them, and their respective ages, we then offered in evidence the mar-miage certificate of the father and mother, showing when and where they were married. We offered this certificate as corroborative of the fact that the witnesses were in fact, the father and mother of the defendant, and would best know the age of the defendant, and also as corroborative of the credibility of the father and mother, and as corroborative of the defendant’s statement in his confession. The court excluded this certificate, and'we took á bill of exception to such ruling.” ‘ - In regard to the question here first presented, while the state introduced only part of the confession, yet the record discloses ■that relator was permitted to and did introduce the remainder of the confession, so it was all before the jury, and no error is presented. In regard to the second bill, the fact that relator had voluntarily testified in the ease of P. K. Holmes in January before this trial that he was more than 17 years of age was admissible as original testimony, and the court should not have limited the effect of the evidence to impeaching purposes. Statements made by a person accused with crime, prior to an arrest, in regard to an issue in the case, are always admissible in evidence, if the state desires to elicit same. In regard to the third, the failure of the court to permit the marriage certificate to be introduced in evidence: There was no issue but what the witnesses were the father and mother of relator. This was uncontroverted; but, if it were not, a marriage certificate would not prove, nor tend to prove, that the codple named in the certificate was the father and mother of any particular person; nor would said certificate be corroborative of the credibility of the father and mother; nor would it tend to corroborate relator’s statement in his confession. Nothing is herein stated that would render such certificate admissible in evidence. If the father and 'mother had testified that relator was born in lawful wedlock, and the certificate had been offered to prove that it would be impossible for relator to have been born since the date of marriage and be over 17 years of age, its materiality might appear. But no such state of facts are presented in the affidavits of relator’s attorneys, in the motion for a new trial, or in the application for habeas corpus, nor for writ of certiorari; hence we naturally conclude that the date of the certificate would have been of no service in this respect, and in no other way could it have^ been material. The testimony of the father and mother would not indicate that such was true, but, on the contrary, that its date was such that it would have been, possible for relator to have been born in lawful wedlock and still have been more than 17 years of age. To say the least of it, the rejection of the certificate was an immaterial matter for any of the purposes herein stated it was offered. The only other grounds,in the motion complain of the admissibility of the written confession of relator, and the insufficiency of the evidence to sustain the verdict. The evidence amply sustains the verdict; the confession of relator showing an unprovoked killing. The confession reads as follows: “On July 22, 1911, about three miles from Saragosa, I met Miss Brown, who was riding in a buggy. T asked her to let ine do what she had promised. She had promised to let me fuck her. When I asked her on the road on July 22, she said I would have to go somewhere else. I told her I just had to do something. She said: ‘What do you mean, you son of a bitch? I am going to have you arrested.’ I told her she did not need to have me arrested; all I wanted was for her to do what she had promised to do. She said she would kill me, and put her hand to her hip. - Then I commenced shooting and shot four times with a 25-caliber automatic pistol. Her-horse ran away, and when I headed the horse she stopped and got out of the buggy. When I got off my horse, the girl ran. She had a stick in her hand. I then stabbed her in the back with my-knife. When she turned around, she hit me with her fist, and I stabbed her four or five times in the breast. She never hit me with the stick. I got on my horse and loped away to Saragosa. I did not tell any one until I was arrested. She was standing up when I left her. After eating supper at home, I went to Crenshaw’s store and worked. On the morning of July 23, 1911, I met John Oates and Floyd Crenshaw in a buggy! Floyd told me that Miss Brown had been found dead; that she had been shot. I afterwards told Jim Mayfield about her being shot. Then I ate dinner and went to Old Saragosa, and from there I went to Mr. Honaker’s place, where the body of Miss Brown had been brought. I' looked through the window but could not see the body. I stayed at Honaker’s almost an hour, and then with Henry Everett I went to a watermelon patch and ate a melon. I was coming out toward Old Saragosa when the officers arrested me. I had the gun that I did the shooting with, but the knife was at home in my other pants. Miss Brown did not pull any pistol at any time. When I told the officers about having killed Miss Brown, I did not tell them about her threatening to kill me; but I did tell Mr. Stuekler last night. This' all happened in Reeves county, state of Texas. I was riding a dun mare, unshod, a little horse. The mare belonged to Crenshaw & Co. I killed Miss Brown about four o’clock in the afternoon. I had tálked to Miss Brown at the store where I worked, on the morning of July 22, and that was when she told me I could fuck her. I am sixteen years old. Was sixteen June 10, 1911. [Signed] Leon Martinez.” The testimony of District Attorney Brady shows that the confession of relator was freely and voluntarily made after being duly warned by him that1 any statement he might make could be used in evidence against him, and the confession was admissible over the objections urged. On direct examination and cross-examination of the sheriff by relator’s counsel, it was shown that the dun mare which relator was riding made a peculiar' track;' ■ her left forefoot' was" split square oft, so it left an open space on the foot, and made a mark that one could identify the track, and the sheriff identified the tracks made by this mare as the one that was following the buggy; He took the mare to the place and compared the tracks. Relator was shown to have Been' riding this mare on the evening that Miss Brown.was killed. ' On the question of the age of the relator,' his mother and father testified he 'was'only 15 years of age.- Lester Majors testified that he was court stenographer, and that in the trial of P. K. Holmes in January, 1911, relator was a witness, and on that trial relator swore he was 17 years of age at that .time. S. H. Crenshaw testified that in April, 1911, he received an invitation to a birthday party of relator; that the invitation was written in Spanish, and relator read it to him; and that it said it was to celebrate relator’s eighteenth birthday, and on that occasion he gave relator a present. Relator was at .that time working for the witness,-and the invitation was in the handwriting of the father of relator. Pat Moran testified that the father of relator had informed him that relator was 16 years of age more than a year before this tragedy. •The court in his charge submitted both murder in the first and second degree, and instructed the jury: “A person for an offense committed before he arrived at the age of 17 years shall in no ease be punished with death, and if you find from the evidence in this case that the defendant was under the age of 17 years at the date of the killing, you will not assess his punishment at death, even though you find him guilty of murder in the first degree, as hereinbefore defined.” Thus it is seen that this issue was submitted to the jury, and they found against this contention of relator, and under the evidence if the ease was before us on appeal we would not feel authorized to disturb their verdict on this issue. While the court’s charge fairly and fully submits the issues, made by the evidence, yet in the motion for new trial, nor in the application for the habeas corpus, nor the certiorari is there any complaint made of any paragraph of the. court’s charge; but if the case was before us on appeal we would not be authorized to review the charge, for by article 723 of the Code of Criminal Procedure of this state, as amended by Acts 25th Leg. c. 21, it is provided that a judgment of conviction shall not be reversed for errors in the charge unless such errors were excepted to at the time or in the motion for a new trial, and no such exceptions we.re reserved. ■ Thus it is seen that, if the case was before us on appeal, this court, if it followed the law and decisions of this court, would feel impelled to affirm the judgment of the trial court, and if, as-relator contends, he in- ¡ ¡ strueted "his"attorneys' to appeal his case,' and they -were prevented from so doing by the' conduct of certain citizens, no' different result could or would have been attained. ¡ It will be seen by reading the application for habeas corpus herein, copied in full, the only ground relied on was the failure to perfect an appeal in the case, and, as herein shown; had an appeal been perfected, no relief under it could or would have been granted relator. In the application for writ of certiorari, that no 'appeal was perfected is the main reliance again, yet in said application no such errors are pointed' out or assigned as would authorize the issuance of the writ- under the common law. However, in the application relator states that - he is a citizen of Mexico, sojourning in the United States, and under the treaty existing between the two countries, and the provisions of international law, he is entitled to a. speedy trial before an impartial jury. This may be conceded. Every citizen of the Unit-: ed -States is entitled to a speedy public trial before' an impartial jiiry, and a citizen of a foreign country, residing within our -borders, charged with crime, is entitled to'and should, receive all .rights, privileges, and benefits accorded to one of our. citizens — no inóre' and' no less. That relator claims to be a citizen of our sister republic, Mexico, would entitle him to no greater consideration, or additional rights, than are accorded' to our own citizens charged with crime. If relator has been tried in accordance, with the laws of this state, in which he had been residing for a number of years, that are made applicable to all persons charged with crime committed within the borders of this state, he has received all . that international law or the treaty entitles.him to.' ;In no paragraph of the motion for a new trial, in no line of the application for a writ of habeas corpus, in no syllable of the application for writ of cer-tiorari, in no word of the testimony, is the fairness or the impartiality of the jury that tried relator assailed. That they were qualified, competent, and impartial jurors at the time they were sworn in to try. said cause is nowhere questioned. That he was indicted by a grand jury-impaneled under our laws is proven beyond question, and no complaint is made in regard to their fairness or impartiality, or that they acted improperly. Our statute provides that a person charged with crime shall be served with a copy of the indictment two days prior to being called upon to announce for trial. Relator received this notice and a copy of the indictment two days before the day set for trial. He was served with a list of the venire drawn- from which the jury was selected in accordance with our law. No motion was made to quash this venire or set it aside, and even now no complaint is made of the mode and. manner of the' selection of the jury, or statement made that for any reason ¡ they '-were' not suitable; proper, and competent persons to sit in Judgment in bis case at tbe time they were selected. The fairness of the trial judge or his charge to the jury is not assailed; but everything is based on matters alleged to. have occurred subsequent to the trial and which it is not alleged could not in any manner have affected the result in the case in the trial court. The only complaint is that he was. denied or prevented from perfecting an appeal to this court. We have herein shown that, had an appeal been perfected, no such error or matters were assigned in the motion for a new trial as could or would have resulted in any benefit to him, and having been tried and convicted in accordance with the laws of our state applicable to all charged with crime, the fact that that he was a citizen of another country, but who was and had been residing in this state for a number of years, entitles him to no privileges not accorded to our own citizens. In the case of Barrington v. Missouri, 205 U. S. 487, 27 Sup. Ct. 584, 51 L. Ed. 890, the Supreme Court of the United States holds: “The question of citizenship is immaterial as affecting the jurisdiction of this court under section 709, Rev. Stat. [U. S. Comp. St. 1901, p. 575]. French v. Hopkins, 124 U. S. 524 [8 Sup. Ct. 589, 31 L. Ed. 536]. Nor are we aware, as Chief Justice Waite said in Spies v. Illinois, 123 U. S. 131, 182 [8 Sup. Ct. 22, 31 L. Ed. 80], of any treaty giving to subjects of Great Britain any dif ferent measure of justice than secured to citizens of this country. And the general rule of law is that aliens are subject to the law of the territory where the crime is committed. Wildenhus’ Case, 120 U. S. 1 [7 Sup. Ct. 385, 30 L. Ed. 565]; Carlisle v. United States, 16 Wall. 147 [21 L. Ed. 426]; People v. McLeod, 1 Hill (N. Y.) 377 [37 Am. Dec. 328]; Wharton, Conflict of Laws, § 819.” In' the court below relator did not plead that he was a citizen of a foreign country, and that he had been denied any guaranties to such citizens. In the motion for a new trial no such question is raised, and neither is it raised in the application for writ of habeas corpus to this court. The first time that it is alleged that he is a citizen of Mexico, domiciled in the United States and in .the state of Texas, is in the application for writ of certiorari filed with the clerk of this court without having obtained leave of this court to file same, and in said petition no grounds are alleged that would indicate he was not given a trial in accordance with the laws of this state applicable alike to all persons charged with crime under the laws of Texas. We are of the opinion that there. is no merit in any of the contentions of relator, and that he should be remanded to the custody of the sheriff of Reeves county, Tex. The above opinion was prepared in December last, and when in consultation on January 3, 1912, our presiding judge indicated he would not agree thereto, he took and'has had the record since that date, and as he, in his opinion delivered to us Tuesday of last week, has stated conclusions wholly at variance with the facts as we gather from the-, record, we have concluded to attach to, and as a part of this opinion, the evidence adduced on the hearing. It is as follows: Judge S. J. Isaacks testified that he was-judge of the Seventieth judicial district of Texas. “The instrument you show me is dated July 24th. The order was made on. Monday morning, and was placed on record, on that day. I drew the order; that is, I dictated it to my stenographer.” The order was introduced in evidence, and reads as follows: “Reeves County, July 24th, 1911. In Vacation. Whereas there was on July 22, 1911,. committed in Reeves county a horrible murder on the person of Miss Emma Brown, and whereas the sheriff has apprehended one accused of having perpetrated the crime, and whereas public policy demands that the accused be given a speedy trial, and whereas-it is in my opinion, advisable and necessary that a special term of the district court of Reeves county be holden in said county for the purpose of impaneling a grand jury to investigate said killing and to try any person that said grand jury may present for-said killing: It is therefore ordered by me, S. J. Isaacks, district judge, that a special term of the district court of Reeves county be convened and holden in the courthouse of' said county, at Pecos, Texas, on this the 24th day of July, A. D. 1911, beginning at 2 o’clock, p. m., and to continue till duly adjourned for the purpose of impaneling a grand jury to investigate the killing of said Emma Brown, and to make such other investigations as said, grand jury and the court may deem expedient and necessary, and for the purpose of trying any and all persons indicted by said, grand jury, and for the purpose of transacting any other business that may legally come-before the court. It is further ordered that this order be entered on the minutes of the district court of Reeves county. S. J. Isaacks, Judge 70th Judicial District of Texas. “State of Texas, County of Reeves. I, I-I. N. McICellar, clerk of the district court in and for Reeves county, Texas, do hereby certify that the above and foregoing is a true- and correct copy of the order convening the district court in special session July 24th,.. 1911, as the same now appears of record in the minutes of said court in volume 3, page - 445, of said records. Witness my hand and', seal of said court at office in Pecos, Texas, this the 31st day of October, A. D. 1911. [Signed] H. N. McKellar, Clerk District Court,.. Reeves County, Texas. [Seal.]” At this juncture Mr. Cunningham, of counsel for relator, stated that they desired to-. place relator on tlie stand, as- they desired to have him returned, to Waco on the afternoon train. Relator, Leon Martinez was then placed on the stand and testified: “My name is Leon Cardenas Martinez. I am a native of the republic of Mexico. I was born in Gallega, state of Durango. My father’s name is also Leon Cardenas Martinez. I am a part of his family, and was living with him when arrested. My father is a citizen of the republic of Mexico. He nor I have never taken out naturalization papers to become citizens of the United States. I am not 21 years old. I am the same person who was sentenced to be hung by Judge Isaacks on the 29th day of last July. I remember the occasion, and can state what occurred. The judge said I had committed a horrible crime, and the punishment of the law was that I be hung by the neek on the 1st day of September, 1911. He asked me whether or not I had anything to say why a sentence should not be pronounced against me, and I told him I wanted to take my ease to the Court of Criminal Appeals and my lawyers would do the rest. He made no reply to that statement. I did not see either of my attorneys after I was sentenced. I saw Judge Parker after the verdict was read, but did not see him after sentence was passed. He came to me after the verdict was read, and I told him I wanted my case appealed, and he told me he was making a motion for appeal. At the time I was sentenced I talked with him before the sentence was pronounced, when I told him I wanted to take my case to the Court of Criminal Appeals, and he then told me he would not do that; that he was sorry for me. I was then taken to jail, and I have not seen Judge Isaacks since he passed sentence on me. I did not waive the right of appeal, and I did not agree that my attorneys should waive the right of appeal. I remained in jail until 3 o’clock that night when I was removed. I was sentenced on the same day that the jury brought in the verdict. ' The jury brought in the verdict about half past 1 or 2 o’clock, and I was sentenced about an hour and a half or two hours later. I did not waive any of my rights, and did not waive the right of two days in which to file written pleadings. My attorneys were Mr. Estes and Judge Parker.” Cross-examined: “I talked with Judge Parker and Mr. Estes the first time oni the morning of the trial. When the court passed sentence upon me, I told him I wanted to take my case to the Court of Criminal Appeals and that my lawyers would do the rest. I think the whole court was present when I made that statement. I think the district attorney, Mr. Brady, was present. Mr. Estes was not present, but Judge Parker was in the courtroom. I do not know Mr. P. W. Johnson, and do not know whether he was present or not. I do not remember whether the sheriff of Reeves county was present or not, and I do not remember whether the sheriff of Midland county was present or not. I remember some of the rangers were present, but do not remember which ones were present. I remember only one, a small man, with black hair. I was not present when my motion for new trial was presented and overruled. I do not remember to have been present in court when Judge Parker announced to the court that no appeal would be taken. I said I do not remember seeing him present the motion for a new trial.” In answer to the question, “Q. And didn’t he go to you after it was overruled and tell you no appeal would' be taken, that you had no grounds ,of appeal?” the relator answered: “A. He did not say that; he said he could not appeal.” “I do not remember whether or not Judge Isaacks asked my attorney, Judge Parker, if he desired' to give notice of appeal.” Redirect: “Judge Parker and Mr. Estes were not permitted to talk to me alone. Before the trial I talked to them in the presence of an officer. I never talked to them when an officer was not present.” Recross: “I do not know whether or not my attorneys ever asked permission to talk to me. They never called to see me at the jail. I was arrested between 4 and 5 o’clock Sunday evening, and was carried to Pecos that night, and was then carried to Midland on Monday. I was brought back from Midland Thursday about 3 o’clock in the evening. I learned I was indicted Wednesday night. The sheriff of Midland county served me with a copy of the indictment.” In answer to the question, “Wasn’t that served on you Tuesday evening?” the relator answered: “I do not remember. My best knowledge is that it was Wednesday evening or Wednesday night. I was served with a copy of the special venire the same day. They were not served at the same time. I was served with a copy of the indictment one evening about 6 .o’clock and was served with a copy of the venire next morning.” The attorneys for relator then stated they desired to waive the presence of the relator, when Judge Isaacks was recalled and. testified: “I have examined this instrument and it is a certified copy of the order appointing jury commissioners. It was made on July 24th, and placed on record the same day. I read it on the record on that date.” The order was introduced, and read as-follows: “Be it remembered that on this the 24th day of July, A. D. 1911, there came on to be held and was held a special terra-of the district court of Reeves county, Texas, which said special term was held in pursuance of an order made by the judge of the Seventieth judicial district on July 24th, 1911. Said term was held at the courthouse in the town of Pecos, Reeves county, Texas. While the following proceedings were had, court was duly called by the sheriff and the following officers were present, to wit: Present and Presiding Honorable 'S. J. Isaacks, district' judge, Will P." Brady, district attorney', H. N. McKellar, district clerk* and 0. Brown, sheriff. The court was called to order by the judge and the following among other proceedings were had and orders made, to wit: It appearing to the court that no grand jurors'and petit jurors had been drawn and summoned for this special term of court, it is ordered by the court that W. W. Ruklen, Sid Cowan, and J. H. Heard, be and are hereby appointed jury commissioners to draw a grand jury and. petit jury for this term of court, the said W. W. Ruhlen,' Sid Cowan, and J. H. Heard were sworn and instructed by the court, and' returned and afterwards came into open court with the envelopes containing the names drawn as grand jurors and petit jurors, and the court after administering the oath required by law to the district clerk delivered to said district clerk the envelopes containing the commissioner’s names and of the grand jurors and petit jurors presented by said jury cpmmis-sióners.” This was properly certified by the clerk of the district court. The witness continued: “The grand jury was impaneled on the next day, July 25th, by order” — which order reads as follows: “July 25th, 1911. On this the 25th day of July, A. D. 1911, came on to be organized ■the grand jury for this special term of this court and a list of persons heretofore selected by the jury commissioners at this term of this court and summoned to serve as such grand jurors, were called and the following persons were found present and found to be qualified to serve as such grand jurors, to wit: T. H. Beauchamp, T. B. Pruett, Jno. Y. Lilley, T. Y. Casey, C. L. Heath, Chris Rite, 0. M. Henderson, Woody Browning, A. H. Phillips, R. R. Smothers, C. W. Goedeke, and E. G. Bowies. And it appearing that the foregoing 12 persons were selected by the jury commissioners at this term of this cóurt and found qualified to- serve as grand jurors, the said 12 persons were duly sworn and impaneled as a grand .jury for this special term of court and T. H. Beauchamp was appointed foreman of the grand jury, after which the court instructed the grand jury as to its duties.” The witness continued: “This seems to be the minutes of the court where the grand jury returned the indictment in cause No. 616, State of Texas v. Leon Martinez. It was returned on Tuesday as shown by the instrument itself; the minutes reading as follows: ‘In the District Court, Reeves County, the 25th day of July, A. D. 1911. ' On this day the grand jury in a body, a quorum being present, appeared before the court in session, and through their foreman delivered, into open court, to the judge presiding, the following bill of indictment, to wit: No'. 616. State of Texas v. Leon Martinez. Which said indictment was then and there, by the court, ordered to be filed,’ Thj'jijg js an or<jer made ori July 25th setting down the case of State of Texas v. Leon Martinez, No. 616, for trial on July 28, 1911.: It reads as follows: ‘The State of Texas v., Leon Martinez. No. 616. In the District Court, Reeves County, Texas. The 25th day of July A. D. 1911. On this day the above styled and numbered cause is set for trial July 28th, 1911, at 9 o’clock a. m.’ “This is an order of the court impaneling the petit jury on the 2Sth day of July. They were the jurors drawn by the jury commissioners. The indictment was returned by a grand jury drawn by the jury commissioners., I remember examining all -the above orders, and they were entered on the days named. This, is the order impaneling the petit jurors for the term. The order reads as follows: ‘On this 28th day of July, A. D. 1911, came on ta be organized the petit jury for the present term of this court, and a list of persons heretofore selected by jury commissioners appointed by the court, said jurors summoned to serve as jurors at the present term of this court was called, and the following named persons were found present and found to be qualified to serve as such, to wit: J. P. Meeks, Frank Burress, C. C. Caldwell, W.' T. Christian, A. J. Hart, H. C. Barstow, E. W. Clayton Albert Sisk, A. G. Taggart, Jess R. Chandler, J. E. Caroline, R. C. Clarke, C. W. Tudor, Seth Lewis, A. E. Pinkston, H. R. Anderson, B. T. Biggs, Ira Jackson, E. E. Wakefield, J. J. Pope, L. O. Brown, F. W. Wilcox, A. G. Bárefield, H. A. Schrock, Alex Davis, Wylie Cole, J. A. Brady, A. W. Hosie and E. Wadley, and it appearing to the court that the foregoing 29 persons were selected by the jury commissioners at this term of this court and found qualified to serve as petit jurors, the said 29 persons were duly sworn and impaneled as petit jurors for this special term of this court.’ “The paper you show me is an order I made ordering summoned a special venire of 36 men; they having been selected in the manner provided by law. It was made on July 25th. It reads: ‘State of Texas v. Leon-Martinez. No. 616. In the District Court of Reeves County, Texas. The 25th day of July, A. D. 1911. On this day, -in the above entitled and numbered cause, came on to be heard the motion of the state for a writ of1 special venire to issue in said cause, which having been duly heard and considered by the court, the same is granted, and it is considered and ordered by the court, that the clerk of this court do forthwith issue to the sheriff of this county a writ of special venire commanding him to summon on the venire the ‘thirty-six’ persons whose names are set out in a list in the said writ, to appear before this court at 9 o’clock, on the 28th day of July, A. D. 1911, at the courthouse of this Reeves county, then and there to serve, if selected, as jurors in .the trial of this cause; and it is further ordered by the court that said Writ of special- venire to be issued in obedience hereto shall be made returnable in this court on the 26th day of July, A. D. 1911, on or before 10 o’clock a. m.’ “This is a copy of the indictment returned in court by the grand jury impaneled: ‘In the Name and by the Authority of the State of Texas: The grand jurors, for the county of Reeves, state aforesaid, duly organized as such at the special July 24th term, A. D. 1911, of the district court ofi .said county, upon their oaths' present that Leon Martinez on or about the 22d day of July, A. D. one thousand, nine hundred and eleven, and an-teribr to the presentment of this indictment, in the county “of Reeves and state of Texas, did then and there unlawfully with malice aforethought kill Emma Brown by shooting the said Emma Brown with a pistol and stabbing the said Emma Brown with a knife, against the peace and dignity of the state. T. H. Beauchamp, Foreman of the' Grand Jury.’ Indorsed as follows: ‘No. 616. The State of.Texas v. Leon Martinez. Indictment. Offense: Murder. Piled 25th day of July, 1911. H. N. McKellar, Clerk of the District Court of Reeves County,. Texas.’ ” Copies of the verdict of the jury and the judgment based thereon were introduced in evidence dated July 29, 1911. The motion of relator for a new trial was identified and offered in evidence, and reads as follows: “State of Texas v. Leon Martinez. No. 616. In the District Court of Reeves County, Texas. Special July Term, A. D. 1911. Now comes the defendant in the above entitled and numbered cause and moves the court- to set aside and hold for naught the judgment rendered in said cause against this defendant on the 29th day of July, A. D. 1911, for the following reasons, to wit: First. Because the court erred in not charging the jury that the testimony of the stenographic notes to the effect that this defendant swore that he was seventeen years old in the trial of the Holmes Case, should be considered by them as impeaching testimony only, as shown by defendant’s bill of exceptions number one. Second. Because the court erred in permitting the said stenographic notes to be used as evidence in the trial of said cause against this defendant, as shown by defendant’s bill of exceptions number two. Third. Because the court erred in sustaining the state’s exception to the marriage certificate offered in evidence by defendant, said certificate showing a marriage between the defendant’s father and mother, and the date of said marriage certificate, as set out in plaintiff’s bill of exceptions number four. Fourth. Because the court erred in permitting the state’s attorney to read a part of the written confession of defendant to the jury, and not requiring said state’s attorney to read the whole of said statement, said written statement being a confession made by defendant to the state’s officer, and introduced by the state against defendant as a written confession, as set out in defendant’s' bill of exceptions number five. Fifth. Because the court erred in permitting the'written confession of defendant to be read to the jury in the trial of said cause, as shown by defendant’s bill of exceptions number six. Sixth. Because the verdict against- this defendant is contrary to the evidence in said cause, in this: The competent testimony in said Case pertaining to the age of this defendant was to the effect that he was under seventeen years of age at 'the time of the commission of the offense alleged in the indictment. Seventh. Because said verdict and judgment is contrary to the law, in that the testimony in said cause failed to show the defendant’s age to be seventeen years, as required by law. Eighth. Because the testimony against this defendánt is insufficient in law , to show that this defendant is guilty of murder in the first degree. Ninth. Because said verdict and judgment is contrary to the law and not warranted by the evidence. Wherefore, premises considered, defendant prays that said verdict and judgment be set aside and this defendant be granted a new trial. George Estes, J. W. Parker, Attorneys for Defendant.” Copies of the order overruling the motion for new trial and sentence of the court were then introduced in evidence, and the charge of the court. The charge reads as follows: “State of Texas v. Leon Martinez. No. 616. In the District' Court of Reeves *County, Texas. Gentlemen of the Jury: In this case the defendant, Leon Martinez, stands charged by Indictment with the'offense of the murder of Emma Brown, alleg