Full opinion text
BROOKS, Judge. Appellant was indicted and convicted of an assault with intent to rape, and his punishment assessed at five years confinement in the penitentiary. Prosecutrix testified, in substance, that on December 29, 1899, she started with appellant from a party to her home. They left the party about midnight. Appellant drove rapidly for about half a mile south; then turned west on the road leading by Joe Queen’s house. Appellant said, “I believe I will halloo.” She insisted he should not. “He then asked me to kiss him. I told him I would not do it; that I was not that kind of a girl.” “Appellant had slowed up the team just before he got in the road that runs east by Salyer sehoolhouse and west by Joe Queen’s house, there being a wagon in front of us. The wagon turned east, and we turned west. Some one approached us in a buggy, and defendant said: T wonder what those people want with us. I suppose they want you.’ I replied I guessed they did not want me. The buggy then passed us, and went on out of hearing. Defendant asked me to take the lines and drive, as he wanted to put on his gloves. After putting on his gloves, he again took the lines. He then asked me if I loved him. I told him I loved everybody. He asked me to Jet him have a piece.’ I told him he ought to be ashamed of himself. I was sitting on his left side. He stopped the horse, threw his right arm around me in front, caught me by the left side with his right hand. He got in front of me between my feet, and pushed my left foot out of the buggy, holding me at the same time pressed against the back of the buggy seat. He pressed his breast against me, and got down on his knees, and ran his left hand up under my clothes, and put his bare hand on my privates. He caught my right leg with his left hand. His pants in front were unbuttoned, but I do not know whether his penis was out of his pants or not. He unbuttoned my drawers, which were buttoned on my right side, and pulled them down in front. He had his right hand around my waist, and had my right leg with his left hand, and was holding me so that I could hardly move. I caught hold of his hands, and tried to hold them, and pushed against his breast with my hands with all my strength. I begged him to quit, and let me alone, and tried to shame him. He said I had just as well give up, as he was going to take it anyway. He used great force, and handled me so roughly as to hurt me. While he had me in the position I have described, he raised my clothes, and pulled my body towards him, and pushed his body towards me. I resisted him with all my strength, and in every way I could, from the time he first took hold of me. During the struggle, I pushed him back against the dashboard of the buggy, and got loose from him, and jumped out of the buggy. When I jumped out of the buggy, I hallooed twice. I cried ‘Oh! Oh!’ twice. I then ran up the-road about fifty yards. Defendant called to me, and I understood him to say that I had just as well come back, as he would catch me before I got home. I heard defendant’s buggy start rapidly, the wheels rattling as if going fast. It was dark,' and I crawled under a barbed wire fence, and went a mile through a thick brush pasture, most of the way without any road, except the last quarter, until I reached by Uncle Zack’s house, and I stopped there, and immediately told my aunt what had happened, and who had done it. My uncle then went home with me, and I told my mother what had occurred. He did not tear my drawers, but simply unbuttoned them.” The above is, in substance, the testimony adduced upon the trial. Appellant insists that the court’s charge is erroneous in the following portion: “You are instructed that, in order to constitute the offense of an assault with intent to rape, it must be shown by the evidence, beyond a reasonable doubt, that the defendant made an assault upon the person of the witness Beulah Walker as alleged, and that at the time of such assault, if any, the defendant had the specific intent to have carnal knowledge of the said Beulah Walker by force, and without her consent, and that he intended to use such force, if necessary, as would be sufficient to overcome such resistance on the part of Beulah Walker as she should make.” He insists that the charge should have gone further, and stated that the jury must believe from the evidence, beyond a reasonable doubt, that the prosecutrix put forth her utmost efforts to prevent appellant accomplishing his purpose, considering the relative size and strength of the parties, the conditions surrounding them at the time, and other circumstances of the case. In this appellant is sustained by the case of Mooney v. State, 29 Texas Criminal Appeals, 257. We there held that force on the part of the prosecutrix in resisting to the utmost the effort on.the part of appellant to accomplish the offense is a criterion by which the consent is to be tested; for, if no resistance to the carnal act is made by the prosecutrix, the presumption obtains that she consented to the act. The same view is expressed by us in Owens v. State, 39 Texas Criminal Reports, 391. However, article 723, Code of Criminal Procedure, provides, in substance, that we shall not reverse a case unless the error complained of was calculated to injure the rights of appellant. Was this calculated so to do? We think not; since the undisputed evidence shows that the prosecutrix resisted the efforts of appellant successfully, and finally fled from his presence, in the nighttime, to the house of a relative. If there had been any evidence indicating consent on her part, or a lack, rather, of resistance, then a charge of the character insisted upon by appellant’s counsel would have become necessary, and its absence would probably have injured the rights of appellant. But here the prosecutrix has used all the force necessary, since that used by her accomplished all that she sought, i. e., escape from the lascivious embraces of appellant. The learned judge, among other things, charged the jury as follows: “The definition of force, as applicable to an assault and battery, applies also to the crime of rape; and, in order to constitute rape, the force must have been such as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength of the .parties, and other circumstances of the case. * * * How, if jmu believe from the evidence in this case that the defendant assaulted the said Beulah Walker, as alleged in the indictment, but you have a reasonable doubt whether, at the time of such assault, he intended to have carnal knowledge of the said Beulah Walker without her consent, or have a reasonable doubt whether he intended, if it became necessary, to force compliance with his desires at all events, regardless of any resistance that might be made by said Beulah Walker, then you will find the defendant not guilty of an assault with intent to rape. Unless you believe from the evidence, beyond a reasonable doubt, that the defendant assaulted the said Beulah Walker as alleged, and that at the time of such assault, if any, the defendant intended to have carnal knowledge of her without her consent, and by force, and that he intended, if necessary, to use such degree of force as would be reasonably necessary to overcome any resistance on the part of said Beulah Walker as she could make, taking into consideration the relative strength of the parties and other circumstances of the case, you will acquit the defendant of an assault with intent to rape. If you believe from the evidence the defendant assaulted the said Beulah Walker as alleged, and that he used force to accomplish his purpose, but have a reasonable' doubt whether or not he intended thereby to force compliance with his purpose in spite of any resistance on her part, or whether he merely intended thereby to obtain the consent of said Beulah Walker to such intercourse, then you will acquit the defendant of the charge of an assault with intent to rape.” In the opinion of the writer, were it an original question, I would hold that these excerpts, taken in connection with the entire charge, would constitute a correct charge on the law; but the whole trend of the decisions is against this position. They hold that there must not only be the specific intent on the part of the appellant to accomplish the purpose, but that there must be such resistance on the part of the prosecutrix as shows the utmost effort on her part to resist the assault, taking in consideration the relative strength and size of the parties and the surrounding circumstances. We therefore hold that the contention so ably insisted upon by appellant in his brief as error is well taken; but in the light of the record before us, as indicated, it is not such error as is calculated to injure the rights "of appellant, since there is no question in this case that prosecutrix used all the force necessary to defeat the appellant’s purpose in the assault committed upon her. Appellant also insists that the evidence is not sufficient. After a very careful review of the facts, we believe they support the verdict of the jury. The jury have passed upon the sufficiency thereof, and we see no reason for disturbing their finding. The judgment is affirmed. Affirmed.
ON MOTION FOR REHEARING. February 13, 1901. BROOKS, Judge. The judgment herein was affirmed at the Tyler term, 1900, and now comes before us on motion for rehearing. The main insistence of appellant is that article 723, Code of Criminal Procedure, is unconstitutional. We have frequently passed upon this matter, and have uniformly upheld its constitutionality. Johnson v. State, ante, p. 87. But, on account of the very able and ingenious argument of appellant’s counsel, we deem the subject of sufficient importance, in deference to said argument, to review the matter again. Prior to the amendment, article 723 (which was then article 685 of the old Code) read: “Whenever it appears by the record in any criminal action upon the. appeal of a 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.” Under the provisions of this article we had held that, however immaterial the error may have been, if promptly excepted to, and presented by proper bill of exception^ on appeal, the statute was mandatory, and the conviction should be set aside, without inquiry as to the effect of such error in prejudicing defendant’s right before the jury. This construction of the article extends as far back in our jurisdiction as Marshall v. State, 40 Texas, 200; and that construction was maintained up to the adoption of _ the present article 723, which was an amendment of the above quoted article. The uniform trend of authorities under the old article was that the statute made it obligatory upon this court to reverse the judgment, and the reversal was placed upon the sheer force of the statute alone. Now, we base the present ruling upon article 723 and the sheer force of the statute alone. Appellant insists that the Legislature can not interpret a law, and makes a long, elaborate, and ingenious argument to establish this. It is axiomatic the Legislature can not interpret a law, but they can pass a statute to be interpreted by this court. They did pass such a statute (article 685 of the old Code), and they amended that article by the enactment of article 723 of the present Criminal Code. Now, then, when so amended, article 723 must be construed as an integral portion, part, and parcel of the whole Code of Criminal Procedure, and especially as part and parcel of the “eight preceding articles” in the Code of Criminal Procedure. When so construed, we think the only rational, legal, and authorized construction of said articles is: Whenever it appears by the record in any criminal action, upon the appeal of a defendant, that any of the requirements of the eight preceding articles have been disregarded, the judgment shall not be reversed, unless the error appearing from the record was calculated to injure the rights of the defendant, which error shall be excepted to at the time of the trial or on motion for new trial. Now, then, if the judge fails to give a charge in writing applicable to the facts of the case as required by one of the “eight preceding articles,” this fact must be excepted to at the time of the trial or on motion for new trial, else we can not review it. This is the clear, reasonable, and rational construction of the article. Article 723 is not a legislative effort to construe the preceding articles, but it is a constitutional amendment of the old article, and, as stated, becomes an integral portion of the Code of Criminal Procedure, and must be construed with reference to it. It is conceded by this court, if the Legislature were to pass a resolution, as insisted upon by appellant, construing any provisions of the Code, their construction of the Code would not bind this court, because it would l?e a usurpation of judicial . power on the part of the Legislature. The three co-ordinate branches of our government must and shall be kept inviolate as long as our form of government exists. But if the Legislature pass a statute modifying the meaning, purpose, and intention of a previous statute, then the last enacted statute must be taken as modifying the previous statute, and to that extent a repeal of the previous statute, so to speak; otherwise, the Legislature could never change a law. Defendant has no vested right in a remedy or a statute providing a remedy. The eight articles that precede article 723, Code of Criminal Procedure, have no more sanctity than any other article in the Code of' Criminal Procedure. They are statutes passed by the Legislature in furtherance of their duty to provide a Code of Criminal Procedure, and. so far as they provide a reasonable, adequate, and constitutional remedy for the assertion of legal and constitutional rights, just so long is the statute constitutional. On this subject the rule is tersely stated by Potter, Dwar! St., page 472: “Whatever belongs merely to the remedy may be altered according to the will of the State, always provided the alteration does not impair the obligation of the contract; but, if a statute so changes the nature and extent of an existing remedy as materially to impair the rights and interests of the owner of property, it is just as much a violation of the constitutional provision as if it directly overturned the rights and interests. If the remedy does not impair the right of property itself, if it still leaves the party a substantial remedy according to the course of justice, as the right existed at the time of the passage of the statute, it does not' impair the obligation of the contract, nor will it be held to do so merely because the new remedy is less efficient, less speedy, or less convenient than the old one.” And again, where the Legislature “provided a new remedy in the eases-where the right of re-entry was reserved to enforce the collection of the debt due the landlord, it was held this was an ordinary and proper exercise of legislative power, unless individuals by contract can perpetuate a legal remedy in spite of the Legislature, which is absurd.” The State “is bound to afford adequate process for the enforcement of rights, but it has not tied its- own hands as to the modes by which it will administer justice. Those, from necessity, belong to the supreme power to prescribe, and their continuance is not the subject of contract between private parties.” See Id., p. 473. The same thought is expressed by Black on Interpretation Law, page 265, as follows: “No person has a vested right in any form of procedure. He has only the right of prosecution or defense in the manner prescribed for the time being, and, if this mode of procedure is altered by statute, he has no other right than to proceed according to the altered mode. Indeed, the rule seems to be that statutes pertaining to the remedy or course and form of procedure but which do not destroy all remedy for the enforcement of the right, are retrospective, so as to apply to causes' of action subsisting at the date of their passage. Statutes which relate to the mode of procedure, and affect only the remedy and do not impair the obligations of contracts or vested rights, are void; and it is no objection to them that they are retroactive in their operation. It is competent for the Legislature at any time to change the remedy or mode of procedure for enforcing or protecting rights, provided such enactments do not impair the obligations of contracts, or disturb their vested rights; and such remedial statutes take up proceedings in pending causes where they find them; and, when the statute under which such proceedings were commenced is amended, the subsequent proceedings must be regulated by the amendatory act.” Now, reverting to the statute under discus-' sion, we find that the Legislature has provided that, if a defendant does not except by bill of exceptions at the time of the trial or on motion for new trial to the charge of the court, we shall not review such matters, and shall not reverse the case unless appellant is shown to have been injured. This statute is certainly adequate for the assertion of appellant’s rights, for he can take two or three weeks, often, after the trial, in ascertaining the defects in the court’s charge, and set up these real or supposed defects in the motion for new trial, which motion we are required to review, and reverse the judgment if the court has erred in a manner calculated to injure the rights of appellant. Less than this the State could not give. More than this appellant can not ask. In Pena v. State, 38 Texas Criminal Beports, 334,—among the earliest decisions by this court on this subject,—the Court say: “Under the recent act of the Legislature [Acts 25th Legislature, page 17] this court is prohibited from reversing a judgment for material error of the court in regard to charging the law, unless the error shall be excepted to at the time of the trial or on motion for new trial. As stated above, exceptions were not reserved, and, even if the court erred in not charging the law applicable to aggravated assault, and such failure was material error, this court would not be justified in reversing the judgment, unless exception was reserved to this omission of the court either at the time of the trial or "on motion for new trial.” Every -member of this court has, first and last, rendered a decision re-enunciating this principle, and upholding the constitutionality of this statute. We have been entertained both by the argument and appellant’s able brief, and commend him for the great research and learning shown in the preparation thereof. But we can only repeat what has heretofore been said—that article 723, Code of Criminal Procedure, is in all respects constitutional, since it provides a complete, reasonable, perfect, and adequate remedy for the assertion of the rights of appellant under the Constitution of the State of Texas, if availed of at the time authorized by the statute. If he fails to avail himself of the remedies provided by the Legislature, he can not assert his rights; nor can we review or protect his rights, unless he comes within the purview of the statute authorizing the assertion of these rights. We have carefully reviewed the other assignments of appellant in his motion for rehearing, and do not think any of them are meritorious. The error in the court’s charge was not calculated to injure the rights of appellant. The motion for rehearing is accordingly overruled. Motion overruled.
DAVIDSON, Presiding Judge (dissenting). In the original opinion this court held the trial court committed error in giving certain charges, as well as in refusing requested instructions of appellant. The case was affirmed upon the theory that under article 723, Code of Criminal Procedure, the error complained of was not calculated to injure the rights of accused. Appellant, in motion for rehearing, sought to bring in review the error of this court in holding that the error of the trial court was not material, or calculated to injure his rights. In the opinion on rehearing this question is not discussed by my brethren, but they sought to fortify their opinions in the Johnson case, ante, p. 87, and Bell’s case, 58 Southwestern Reporter, 71, but overruled the motion for rehearing. I respectfully dissent, and hold the error was of such character as to require a reversal, and adopt the views of Mr. A. S. Fisher, appellant’s counsel, as expressed in his elaborate and very cogent brief, as follows: “At the Tyler term this court affirmed the judgment of the lower court, and in its opinion held substantially: (1) That the instructions of the lower court upon the trial of this cause were not the law of this case, and against the well settled law as often construed and announced by this 'court; (2) that the contention of appellant was correct, that the lower court erred in omitting to instruct the jury as contended for by him; (3) that, notwithstanding the errors of omission and commission of the lower court, and notwithstanding the fact that appellant had duly excepted to such errors, this court could not reverse, because of the restraining power of article 723, Code of Criminal Procedure, as amended in 1897, which, in effect, requires this court to look alone to the facts for the purpose of determining whether the error complained of was calculated to injure the rights of appellant. We respectfully suggest that this court is in error; (1) in holding that the Legislature can in any way bind or limit the judicial power or discretion of this court in the manner attempted by article 723, as amended; (2) in limiting the question of injury to one of fact, whereas an error calculated to injure the rights of defendant "may be one of law as well as of fact, or may be a mixed question of law and fact. So much of article 723, which provides ‘that, whenever it appears by the record in any criminal action upon appeal of a defendant that any of the requirements of the eight preceding articles have been disregarded, the judgment shall not he reversed unless the error appearing from the record was calculated to injure the rights of the defendant,’ is unconstitutional, and void: (1) because it is a direct invasion of the power and province of the judiciary, and is violative of section 1, article 2, of the Constitution; (2) because it is violative of section 19 of the Bill of Rights, which provides that ‘no citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land;’ (3) because it is violative of section 13 of the Bill of Rights, which provides, ‘All courts shall be open, and every person for an injury done him in his lands, goods, person or' reputation, shall have remedy by due course of law;’ (4) because it is violative of the Fourteenth Amendment of the Constitution of the United States, which says, ‘Uor shall any State deprive any person of life, liberty, or property without due process of law;’ (5) because it is violative of section 15 of the Bill of Bights, which provides, ‘The-right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same and to maintain its purity and efficiency;’ (6) because it is violative of section 10 of the Bill of Rights, which saj's, ‘In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury.’ “Let us first inquire as to the meaning of the terms: “1. ‘Due course of the law of the land,’ and ‘remedy by due course of law.’ This means, as applied to judicial proceeding, a course of proceeding according to those rules and principles which have been established in our system of jurisprudence for the protection and enforcement of private rights. It is imperative that there be a court of competent jurisdiction; that the proceedings be regular, and appropriate to the question involved; and that the trial be a fair one, and pursued under and according to the established mode of procedure theretofore ascertained and provided for the trial of like cases. Pennoyer v. Neff, 95 U. S., 714, 24 L. Ed., 565; Parsons v. Russell, 83 Am. Dec., 728, and note 731; Burton v. Platter, 4 C. C. App., 95, .53 Fed. Rep., 901, 10 U. S. App., 657; Brown v. Hummell, 6 Pa., 86; Zeigler v. Railroad, 58 Ala., 594. ‘Due process of law,’ or ‘due course of law,’ in a criminal case, requires a law describing the offense. The offense must be described in an accusation. The accused must be given his day in court. His trial must proceed according to established procedure, consisting of rules of pleading and practice. The admission of evidence for and against him must be according to established rules; and he must be convicted, if convicted, by the judgment of a court of competent jurisdiction, and the punishment must be authorized by law. The definition of the offense, and the authority for every step in the trial, must be found in the law of the land. Nothing essential can emanate from arbitrary power. The rights of the defendant and the duty of the court are equally under the fingers of the law. It is said in Hood v. State, 44 Alabama, 81: ‘Due course of law, in its constitutional senke, means that every person who is charged with an offense shall be charged and tried as required by the laws of the land, and not otherwise. And for this purpose, in a criminal prosecution, the record must show that the accused is charged with an indictable offense according to the forms of the law, and that his trial has been conducted as the practice required by law prescribes. If these requisites, on the face of the record, appear to be wanting, it is the duty of this court to refuse to" give judgment on motion, pointing out the deficiencies.’ 2. ‘In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury’ and ‘the right of trial by jury shall remain inviolate.’ By this is meant, in felony cases, that the -accused is not only entitled to be tried within a reasonable time by a jury of his peers, but, when tried, it must be a jury, when he pleads not guilty; and that each and every step in the trial must be conducted according to fixed rules, regulations, and proceedings of law previously provided and enacted; that the jury must be the exclusive judges of the facts, under proper and appropriate instructions as to the law from the court; and that the law applicable to the case, as the law is, must be submitted by the court to the jury, that the jury may apply to it the facts. If this is not done, and the charge is so framed that the jury can convict upon a less degree of evidence than the law requires when the facts are applied to the law, then the accused has not had a fair trial; and when the Legislature seeks to authorize' and empower a court to disregard the fixed rules, regulations, and mode of procedure provided for trial, and to review the case alone upon the facts to ascertain the question of injury, it impairs a right of fair trial by a jury, and the right of trial by juries no longer remains inviolate. There is no question of the power of the Legislature to enact rules of practice and modes of procedure ; but it is denied' that the Legislature has the power, after it has enacted rules of practice and provided modes of procedure, to enact any law, so long as such mode of procedure and rule of practice remains unrepealed, which will authorize this court to disregard them, or constitutional or other statutory rights of defendant, whether those rights flow from some mode of procedure or from some rule of practice, when such is the due course of the law of the land provided by the lawmaking power to carry out the constitutional guarantee That his right of trial by jury shall remain inviolate/ The Legislature, in the exercise of its legitimate power, has enacted modes of procedure and rules of practice, and its power to do so is not here denied. It has provided how the grand and petit jury shall be drawn. It has provided how the grand jury shall be impaneled and sworn. It has provided how the bill of indictment shall be returned. It has provided how the defendant may be arrested, and brought into court. It has provided how his attendance may be secured. It has provided how the petit jury shall be impaneled and sworn. It has provided how an impartial jury may be secured by means of challenge and otherwise. It has provided how, and at what time, the pleading of the State and defendant may be offered. It has provided him with forms of pleas. It has provided for the time and mode of the introduction of testimony. It has provided rules of evidence. It has provided for the argument of the case, and regulated its order. It has provided the manner in which the jury shall be instructed by the court. It has provided how the jury shall be kept together. It has provided how the jury shall return its verdict. It has provided for the defendant in presenting his motion for new trial and motion in arrest of judgment. It has provided the mode by which he may appeal his case. It has given him a mode by which he may save his exceptions (and thereby have error passed upon and considered by the court). All of these are legitimate matters of legislation, and constitute the ‘’due course of the law of the land/ as contemplated by the Constitution. “But how about article 723 as it stands now? It does more than prescribe the rule of practice or mode of procedure. It not only attempts to provide the mode of procedure, but seeks to declare its effect, and, in effect, says, though the Constitution guarantees that the right of trial by jury shall remain inviolate, and that the defendant shall have a speedy public trial by an impartial jury under the due course of the law of the land, yet his case shall not be reversed if he has not had such trial, and though it shall affirmatively appear from the record that every right guaranteed to him by the Constitution may have been violated. This court is not certainly prepared to sanction such an assumption of legislative power, and surrender its authority, the most sacred known to the law, the only safeguard of the citizen, to the legislative department of the government. It not only seeks to declare its effect, but the effect of each and every one of the 'eight preceding articles' mentioned therein. It, in effect, requires this court to ignore all errors of law, and look alone to the facts of the case. It authorizes—yea, compels-—this court to affirm a case, though every right of the defendant may have been disregarded and ignored upon the trial of the casej and though no due course of the law of the land was observed. It compels this court to usurp the province of the jury, and to look alone to the facts of the case, though the Constitution guarantees to the defendant 'a speedy public trial by an impartial jury,' and that 'the right of a trial by jury shall remain inviolate,’ and that its 'purity and efficiency shall be maintained,' and that the power to transgress this right is excepted out of the general powers of the government, and shall forever remain inviolate. It is not only an invasion and limitation of the powers of this court, but is a limitation of the rights of the citizen. A defendant, when charged with crime, is not only entitled to a trial by jury, but to a fair trial by jury; not only to be heard upon the facts, but upon the law and the facts. If he is guilty, his guilt is not to be determined from the facts, but from the law and the facts. He has the right, not only to have the facts passed upon and considered by the jury, but passed upon and considered legally by the jury. We are willing to concede, and do concede, that the Legislature, at the time it enacted article 723, had the power, without in any way affecting the rights of the defendant, because his rights had not been attacked, to have repealed each and all of the eight sections referred to thereby, and could have, in the exercise of its legitimate power, if it had seen proper, so amended each article as to prescribe a different mode of procedure. But our answer is that it neither amended nor repealed any of such articles, but left each and every one of them in full force and effect as the rule of procedure, prescribing the due course of law to be followed by the trial courts in cases 'of felony, without substituting any other rule of procedure in its place. In fact, so far from repealing such articles, they are referred to in article 723, recognized, and reaffirmed; but their effect is sought to be limited, and the judicial discretion of this court is sought to-be controlled thereby. In fact, it is nothing more nor less than a legislative mandate to this court to disregard the due course of the law of the land, to look-not to the mode prescribed for the trial of the citizen, and .to disregard both errors of omission and commission, and not to reverse, if, in the opinion of the court, the facts, regardless of the law, tend to show the guilt of the defendant appealing, whether he has been legally tried or not, or whether such facts have not been legally passed upon by the jury under the law, nor properly submitted to them by the trial court. This doctrine is monstrous. It is a strict adhesion to legal forms and procedure that constitutes the safeguard of the citizen, and protects him in those constitutional guarantees which are thrown around the humblest in the land. Take away, destroy, or impair modes of procedure, and due course of the law of the land becomes impossible, and the constitutional guarantees dead letters. The judiciary system becomes a mockery and a mobocracy. It is the mob only who look alone to the facts in disregard of legal forms and procedure, and who know 'no due course of law.’ The law is That a legislative body can not compel the courts to adopt a particular construction of law which the Legislature permits to remain in force, and that, unless the declaratory act constitutes an express or implied amendment of the original act, it will not be binding on the courts, even though it be entirely prospective in its operation, and expressly confined to future cases.’ "There is a broad distinction between those acts of the Legislature which limit the right of the citizen charged with crime, and who may be tried for such, and those acts which enlarge his rights. The State, through its Legislature, can enlarge the constitutional right of the citizen, but can not limit; nor can it limit a statutory right unless first destroying the statute in the mode pointed out in the Constitution. As long as the statute conferring the right remains, the right itself remains, and must be observed. We know of no stronger illustration than article 723. As it stood before the Act of 1897, a defendant on trial had certain statutory rights guaranteed him by the eight preceding articles mentioned in 723. These rights were not only guaranteed, but this court was carefully charged with the duty of seeing that such rights were observed by the lower courts, and were required to reverse the case for new trial if such rights were disregarded. This article, as it then stood, having been enacted at the same time of the enactment of the eight preceding articles, was clearly constitutional, because so far from limiting the right of the citizen, it gave him the mode by which this right could be guaranteed, and made it incumbent upon this court to protect such guarantee. But not so with article 723 after its amendment. The amendment, without in. any way taking away or repealing the mode of procedure as provided by the eight preceding articles, seeks to limit the right and to destroy the guarantee, thereby limiting the statutory and constitutional rights of the citizen, invading the province of this court, and enlarging the powers and rights of the State, because it is a maxim well established That there can be no limitation of the rights of a citizen without at the same time enlarging the powers of government.’ It, in effect, says, ‘Though it may appear affirmatively from the record that the citizen, has not had a fair trial under the due course of the law of the land, as prescribed and provided in the eight preceding articles, and though each and all the requirements of such articles may have been disregarded, this court shall not reverse where, from the facts, it appears that the defendant is guilty, notwithstanding any material error of law shown by the record to have been committed upon the trial of the case.’ Whether such be the effect or not, this court, in the case at bar, has virtually so held. Are we going too far in making this assertion? We think not. Why? Because this court admits material error in the charge of the lower court, and looks alone to the facts to ascertain whether the error was calculated to injure the rights of the defendant. If such be the scope and meaning of the act in question, can this court say that it does not invade its province, and, if not take away, at least trammel, the judicial discretion of this court? What power has the Legislature to say, ‘You shall not reverse a case for error?’ Is such power within the legislative department of the government ? Is the right to reverse a case for error, or to say when the court shall not reverse, in toy sense a legislative question? If the Legislature, after' having provided rules of practice and modes of procedure, can, by a legislative mandate, instruct this court as to its judgment, and as to the effect of the judgment it is called upon to review, then it possesses a power certainly not contemplated by the framers of the Constitution; and the line of demarkation established by section 1, article 2, of the Constitution is destroyed. “This court is in existence to-day by reason of the Constitution of this State, and its power- as a court is derived from that instrument, and does not depend upon legislative enactment in any sense for its existence. When this court was provided for by the Constitution, it was intended thereby that it should have the full power of a court, with its judicial discretion in matters over which it had jurisdiction untrammeled. Ebr is there anything in the Constitution which in any way points to the conclusion that the Legislature can in any manner control, regulate, or limit the judicial discretion of this court when once its jurisdiction has attached to the given case. Even section 5, article 5, confers no such power upon the Legislature when it says, ‘The Court of Criminal Appeals shall have appellate jurisdiction cbextensive with the limits of the State in all cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law.’ We do not suppose that anyone, in the face of section 1, article 2, of the Constitution, will claim that the Legislature has the power to do a judicial act, or has the power to direct this court as to the kind of judgment, it shall render, or as to the effect or construction it shall give to the eight preceding articles mentioned in article 723, or as to whether it shall consider this error- or that error when such error is apparent upon the face of the record itself. The very effect of the Constitution, in creating this court, was that it could act as a check upon the lower courts, and correct errors of such courts. In other words, it is strictly a court of review, created without original jurisdiction (except in habeas corpus proceedings, etc.), for the express purpose of the exercise of appellate jurisdiction, and power to correct errors of the lower courts, and to compel an observance by them of the rights of defendants in criminal trials, and for nothing else. The Constitution, having guaranteed the right of fair trial by due course of law, created this court as one of the remedies for the enforcement of such rights. As an evidence of this fact, the right of appeal is conferred upon defendants in criminal cases, while no such right is given the State. This being a constitutional court, deriving its powers of supervision from that instrument, can the Legislature, after having provided a mode by which your jurisdiction can attach to a given case, take away your power to review by so hedging it with rules under the pretense of procedure as to render nugatory the object and purpose of the Constitution ? There is a vast difference between the power to provide a rule oLpractiee or mode of procedure and the power to construe or prescribe the effect of such rule or mode. An error will flow from the nonobservance or the disregard by the courts of such rule or mode when such rule or mode has beeti prescribed as a judicial guide. An error, then, is the effect of a disobedience of the rule or mode, and is not the rule or mode of procedure itself. There is nothing to be found anywhere in the Constitution which gives this character of power to the Legislature. Upon the contrary, the Legislature is confined, by such instrument, in its power to construe and interpret the meaning and effect of rules and modes of procedure, exclusively to such rules and modes as each house thereof may prescribe for its own management and procedure. Sec. 11, art. 3. Now, the pertinent inquiry arises: Can the Legislature in any way be controlled by any construction or effect that this court may give to such rule or mode of procedure provided by either house for its own proceedings, or could the court enforce its mandate in the event of a disregard of it by the Legislature? The question answers itself. Why? Because section 1, article 2, of the Constitution stands in the way. And because such power is conferred by section 11, article 3, exclusively upon the Legislature, just as all matters involving judicial discretion, and the effect to be given to its proceedings, and the construction of the law is conferred upon and limited to the judiciary by section 1, article 2, section 1, article 5, and section 13, article 1, of the Constitution. The question and effect of error, then, or whether there be error, is, and always has been, held to be strictly a judicial question; and, if the power of this court in such matters can be controlled by the Legislature, then the Legislature can, by its legislative mandate, take away from this court the power to review and reverse any case. If it can say to this court, You can not reverse unless the error appearing from the record was calculated to injure the rights of the defendant/ it can say, You shall not reverse at all/ Once let down the bars, and the legislative herd, unrestrained by judicial powers in judicial matters, will soon trample out of existence all judicial discretion. Now, in the light of section 1, article 2, and the other articles of the Constitution referred to, we respectfully ask this court: Is it in the power of the Legislature to say that a law which is enacted for the protection of the citizen, and which remains unrepealed, shall be disregarded by the courts? Is the question of error in any sense a legislative question, or is it not, upon the other hand, purely judicial? By what authority does the Legislature say to a court, ‘You may disregard a plain statutory law affecting a constitutional right/ while the law remains unrepealed? We respectfully assert this is not the making of a law, nor is it the exercise of a legislative power to make rules of practice and provide modes of procedure. Yet this is substantially what the Legislature, in its mandate, says to this court. To the lower court it says: ‘You may disregard any of the eight preceding articles prescribing the due course of the law of the land for the trial of a defendant charged with crime, and, while your records may show this, yet, if the facts show him to be guilty, your judgment shall not be disturbed ;’ while to this court it prohibits a reversal, though it may affirmatively appear from the record that the requirements of law have been disregarded, and seeks to compel this court to affirm, when, in the opinion of this court, the facts tend to show the defendant’s guilt, though every legal right of his in the ascertainment of such, facts may have been disregarded by the lower courts, and such disregard is affirmatively shown by the record. We respectfully submit that such a statute is nothing more nor less than a legislative piracy, preying upon the judiciary and the citizen at the same time—upon the judiciary by an invasion of its province; upon the citizen by the ascertainment and establishment of his guilt in utter disregard of law previously enacted, and yet in force, providing as to the means, in connection with the facts, of ascertaining and determining his guilt. Here we have an anomaly in law. The courts are expressly authorized and licensed by this act not only to disregard the law, but this court is restrained, under certain circumstances, from enforcing the defendant’s legal rights; while the defendant is being prosecuted and punished for doing that which the courts are authorized to do, viz., violate the law. “Now, bear in mind that the question is not here as to the power of the Legislature to take away the remedy. Nor is the question here as to whether a person charged with crime has a vested .right in any particular remedy, so long as a remedy is afforded to carry out constitutional guarantees. These questions do not enter into this ease, because the remedy in the trial of criminal eases has long ago been enacted hy the Legislature, and a part of that remedy, the eight preceding articles, is still upon the books in full force by operation both of the lawmaking power, which enacted them, and the judicial power, which has often construed them, and given to them certain legal and judicial effect. The Legislature, then, having permitted the remedy to remain, can not impair that remedy by seeking to compel the courts to give to it a legislative construction instead of a judicial construction; nor can they say 'to the courts that they can disregard the remedy which the lawmaking power has legally provided as a part of the machinery of government for the ascertainment of the guilt or innocence of a citizen upon trial. Nor does the question of the power of the Legislature to pass a retrospective, retroactive, or ex post facto law enter into this case, because there has been no effort made by the Legislature to repeal or amend any of the eight preceding articles, and to substitute other remedies in their places. They have permitted each . and every one of said articles to remain as originally enacted; and to this day are a part of the statutory mode of procedure governing the lower courts in the trial of criminal cases. While permitting the remedy to remain, the Legislature contents itself with its mandate to the lower courts to disregard such remedy, and to this court not to reverse unless such disregard was calculated to injure the rights of appellant. Article 723 does not attempt to give a new remedy, nor repeal an old one, but seeks to compel the courts to disregard existing remedies, We deny their constitutional power to do this, or to in any such way give to the law an effect it did not have when originally passed, and to compel this court to give to it a construction nor originally intended. “We will now review the authorities bearing upon the question at issue first calling the attention of the court to the case of Johnson and Bell, reported in 58 Southwestern Reporter, at pages 60 and 72, decided by this court. In the case of Johnson this court say: ‘We find no bill of exceptions nor statement of facts in the record. Appellants urge error in this court for the first time-as to the charge of the court. If article 723 is constitutional, then, however erroneous the charge of the court may be, appellants having reserved no exception in the court below, either by bill or motion for a new trial, they are without remedy at law. We think said article is constitutional, and, unless appellants complain of the charge below, and reserve that complaint in a bill of exceptions or in motion for a new trial, then such error can not be reviewed in this court, however erroneous or fundamental it may be. * * * If appellant excepts to the ruling of the court by bill or in motion for new trial, then he has a perfect, complete, and adequate remedy provided by statute for the assertion of his rights/ To the same effect is the other Johnson case and the Bell case. It will therefore be observed from an inspection of these cases that the only question raised and decided by this court is the power of this court to review and consider error when not reserved by bill of exceptions or in motion for a new trial, and whether the Legislature has the constitutional power to require defendants to reserve error, either by bill or in motion for new trial. The question raised by us in our motion for rehearing was not passed upon in either of those eases, nor was the court called upon, in the determination of the particular question then before the court, to consider the question we now present. In the case at bar we waive, for the sake of argument, the question as to the power of the Legislature to require error, to be considered, to be saved by bill or in motion for new trial, and treat so much of article 723 as requires the error to be thus saved as being constitutional, because in this case we have duly saved our exception, and therefore the question of exception is not in this case. This we understand to be in strict accord with the holding of the majority of this court in the Johnson and Bell cases; nor do we understand from a reading of those cases that it was the' purpose of the court to go further in its holding as to article 723. The question here presented has not, to our knowledge, been heretofore passed upon by this court, and we therefore ask this court to distinguish this case from those of Johnson and Bell. Nor is the question presented by us decided in any of the cases from Missouri, Wisconsin, Nebraska, and New York referred to by this court in its opinion in the Johnson case. The only question decided in the Missouri cases, except the Davidson case, 73 Missouri, 428, is whether error will be considered when not properly saved by exception, etc. State v. Reed, 89 Mo., 171, 1 S. W. Rep., 225; State v. Dunn, 73 Mo., 586; State v. McCray, 74 Mo., 303; State v. Preston, 77 Mo., 294; State v. Emory, 79 Mo., 461; State v. Davidson, 73 Mo., 428; People v. Guidici, 100 N. Y., 503, 3 N. E. Rep., 493; People v. Kelly, 113 N. Y., 647, 21 N. E. Rep., 122; Williams v. State, 61 Wis„ 290, 21 N. W. Rep., 56; Flower v. Nichols, 55 Neb., 314, 75 N. W. Rep., 864. In the New York case of People v. Guidici the question presented was upon the admission of evidence. The court held (notwithstanding article 527 of the Code) : ‘Errors upon a criminal trial can be made available in this court only by exception duly taken on the trial. This rule is not changed by the provisions of the Code of Criminal Procedure, article 527, authorizing the Supreme Court on appeal in criminal actions to grant a new trial where the judgment is against the evidence and the law, although no exceptions were taken on the trial/ To the same effect is the New York case of People v. Kelly. It seems from these cases that the New York court disregarded such legislative action as is contained in said article 527. The Nebraska case of Flower v. Nichols (a civil suit) does not in any way present the question here under discussion. It simply holds: ‘To enable instructions to be reviewed, they should be separately assigned in a motion for new trial as well as in the petition for error. A judgment will not be reversed for the giving of an instruction which could not have prejudiced the complaining party/ In the Wisconsin case of Williams v. State the court say: ‘Some exceptions were taken to the instructions given the jury. After reading the instructions, we are unable to find anything erroneous in them/ 61 Wis., 292; 21 N. W. Rep., 62. The other questions relate to remarks of prosecuting counsel, to which no exceptions were reserved. The court say, ‘Not having been excepted to, we will not consider the remarks/ And to evidence to which no exceptions were reserved, the court would not consider such objections. The Davidson case was reversed, and defendant discharged, because of fundamental error, though it does not appear that any exceptions were saved or error assigned. From this1 last case it- seems that the purpose of the Supreme Court of Missouri was to hold that the statute of Missouri, or, rather, the power of the Legislature to enact the statute, was limited to the right to require exceptions to be saved only as to those matters, strictly speaking, arising dehors the record, though, however, it is not necessary to determine that question in this case. “Having referred to and reviewed the above authorities, we will now call to the consideration of the court authority from a great many States bearing upon the question at issue, and which we believe sustain our contention. “It is said in the case of Powell v. State, 17 Texas Criminal Appeals, 350: "The Legislature has no authority to interpret or declare a matter of constitutional construction, nor can it set aside a construction of a constitutional provision which has become fixed and settled by judicial determination. With regard to its own enactments, the rule is that, as the Legislature can not set aside the construction of the law already applied by the courts to actual cases, neither can it compel the courts for the future to adopt a particular construction of a law which the Legislature permits to remain in force. To declare what is or has been is a judicial power; to declare what the law shall be is legislative. One of the fundamental principles of our government is that the legislative power shall be separate from the judicial. In the case of Files v. Fuller, 44 Arkansas, 273, the Supreme Court says: TSTo Legislature has the power to prescribe to the courts rules for interpretation, or to fix for future Legislatures any limit of power as to the effect of their action.’ To the same effect is the case of Cotton v. Brien, 6 Rob. (La.), 115; also the case of City of New Orleans v. Insurance Co., 26 Law. Rep. Ann., 499. In Gough v. Pratt, 9 Maryland, 526, it is said: ‘A legislative interpretation of what was the previous law on the subject upon which an act of the Legislature may be passed is not binding upon the courts.’ In Householder v. City of Kansas, 83 Missouri, 488, the Supreme Court says: ‘A legislative interpretation of the Constitution is not binding on the judiciary. If the general assembly should, by enactment, declare what injuries are to be considered damages under that section, it would not be obligatory upon the courts to follow such legislative construction. The making of a constitution is but legislation; legislation, however, of the most solemn character. And, if the General Assembly can place a construction upon it binding upon the courts, then it can make and unmake constitutions at its pleasure.’ In the case of Association v. Graham, 7 Nebraska, 173, it is said: ‘A statute which is substantially in the nature of a mandate to the courts to construe and apply a former law, not according to judicial, but according to legislative judgment, is inoperative, and can not control the courts in interpreting the law and declaring what it is.’ In the New York ease of Salters v. Tobias, 3 Paige, 338, it is held that fin the United States, where the legislative power is limited by written constitutions, a declaratory statute can not have the legal effect of depriving an individual of a vested right, or of changing the rule of construction as to a pre-existing law/ In Reiser v. Association, 39 Pennsylvania, 137, it is said: 'The Legislature has no power to direct the judiciary in the interpretation of acts of assembly previously passed, or require it to change an interpretation already put upon them. Such mandate is unconstitutional and void/ The case of Governor v. Porter, 5 Humphries, 165, says: 'A mandate of the Legislature to the judiciary, directing what construction shall be placed on existing statutes, is an assumption of judicial power, and unconstitutional/ See also Picquet’s case, 5 Pick., 64; Sanders v. Cabaniss, 43 Ala., 173; Prout v. Berry, 2 Gill, 147; Ex Parte Ulrich (D. C.), 42 Fed. Rep., 587; State v. Powell (Miss.), 27 So. Rep., 927, 48 Law. Rep. Ann., 652; State v. Foble, 118 Ind., 350, 21 N. E. Rep., 244,10 Am. St. Rep., 143, 4 Law. Rep. Ann., 101. It is held in Brown v. Circuit Judge, 75 Michigan, 274, 42 northwestern Reporter, 827, 13 American State Reporter, 438, 5 Lawyers’ Reports Annotated, 226, that the Legislature can not deprive the Supreme Court of its revisory jurisdiction over all other State tribunals, and that the Legislature may change the formalities of legal procedure, but it can not make changes so as to impair the enforcement of rights. In Ex Parte Griffiths, 118 Indiana, 83, 20 northeastern Reporter, 513, 10 American State Reporter, 107, 3 Lawyers’ Reports Annotated, 398, it is said: 'It is, indeed, everywhere agreed that constitutional courts are not subject to the will of the Legislature; for, as said in Wright v. Defrees, 8 Indiana, 298, the powers of the three departments are not merely equal; they are exclusive in respect to the duties assigned to each; they are absolutely independent of each other.’ In the case of Houston v. Williams, 13 California, 24, 73 American Decisions, 565, Judge Field,speaking of the court,says: 'In its own sphere of duties this court can not be trammeled by legislative restrictions. Its constitutional duty is discharged by the rendition of decisions. The Legislature can no more require this court to state reasons for its decisions than this court can require for the validity of statutes that the Legislature shall accompany them with reasons for their enactment. * * * The court must, therefore, exercise its own discretion as to the necessity of giving an opinion upon announcing judgment, and, if one is given, whether it shall be orally or in writing. In the exercise of that discretion the authority of the court is absolute. The legislative department is incompetent to touch it. The truth is, no such power can exist in the legislative department, or be sanctioned by any court which has the least respect for its own dignity and independence.’ To the same effect are the cases of Vaughan v. Harp, 49 Arkansas, 160, 4 Southwestern Reporter, 751, and Speight v. People, 87 Illinois, 595. The Supreme Court of Pennsylvania, speaking through Chief Justice Gibson, in the case of De Chastellux v. Fairchild, 15 Pennsylvania, 18, 53 American Decisions, 570, says: Tf anything is self-evident in the structure of our government, it is that the Legislature has no power to order a new trial, or to direct a court to order it, either before or after judgment. The power of ordering a new trial is judicial, but the power of the Legislature is not judicial. It is limited to the making of laws, not to the exposition or execution of them. The functions of the several parts of government are thoroughly separated and distinctly assigned to the principal branches of it—the Legislature, the executive, and the judiciary-—which, within their respective departments, are * equal anid coordinate. Each derives its authority, mediately or immediately, from the people, and each is responsible, mediately or immediately, to the people for the exercise of it. When either shall have usurped the powers of