Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5. Page: 2
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3-4 SJUPREME CO URT.
The State v. Daugherty.
-HEMPIIILL, Ch. J. The only question in this case is whether tile State has
the right of appeal from a, judgment.of the District Court in a criminal case
in favor of tile (lefendanL.
The Constitultion vests in the Supreme Court appellate jurisdiction co-extensive
with the limits of the State, "but in criminal cases and in appeals
from interlocutory judgments, with such exceptions and under such regulations
as the Legislature shall make." It will be perceived that tlhe grant of
jurisdiction over criminal cases and interlocutory judgments is not complete
and unqualified, but is subject to such regulations and exceptions as may be
made by law.
Whether a grant' made in such terms remains dormant until a rule is prescribed
for its exercise does not appear to be well settled in the decisions of
the Supreme Court of the United States on a similar clause in their Constitr,tion
; at least their construction has not been uniform. Appellate jurisdiction
is given to the Supreme Court of the Union. both as to law and fact, with sclh
exceptions and under such regulations as Congress shall make. In the fiist
case requiring an exposition of the provision (Wiscart v. Dalchy, 3 Dall. R.,
326) it -ws held that the jurisdiction of the court could not be exercised unless
Congress liad provided a rule to regulate the proceedings. But in tlie United
States v. Moore (3 Cr. R., 159) and Durousseau et al. v. United States (6 Cr. R.,
307) the position was assumed as the true ol(e that if the j judicial act had created
the Supreme Court without defining or limiting its jurisdiction, it must have
been considered as possessing all the jurisdiction which the Constitution assigned
to it, and Congress, in omitting to exercise the right of excepting from
its coalstitntional l powers, would necessarily have left those powers undiminished;
that the appellate powers are not given by tle judicial act, but by the
Constitution. In Barry v. Mercein et al. (5 How. U. . R., 119) the court
adopted the original construction of the clause, and laid the rule down broadly
that the court possesses no appellate power in any case unless conferred upon
it by act of Congress; nor can it, [4] when conferred, be exercised in any otler
form or b)y alny other mode than tiat prescribed by law. (Ewing v. Kinnard,
2 Tex. R., 163; Baillieu v. Robinson, Id., 160; Dow et al . . Iotclikiss, 2 Tex.
1., 471.) It will niot be necessary to attempt to eviscerate from these really or
apparently conflicting decisions the true rule of construction. In all of them it
was lleld, in effect, that when the Congress hlad prescribed tle rule, the courts
could not depart from it, (3 Dall. R., 326;) that the Legislature of the Union
in the judiciary act, must be understood as having exercised tlieir constitutional,
power of making exceptions to the appellate jurisdiction of the court, and that
an affirmative of tile appellate powers of the court must be understood as a
regulation Itnder the Constitution prohibiting tlme exercise of other powers than
those described. (3 Cr. I., 159; 6 Id., 307.)
T'he Legislature of this State hlas, by the act regulating appeals in criminal
cases, (Laws of 1846, 330,) exercised the constitutional power vested in them
to prescribe the regulations and exceptions for tile exercise of appellate jurisdiction
i tllis class of cases; and by tile rules of construction deduced from
the authorities tlme affirmative description of the powers of tlme court must be
understood as implying' a negative of the exercise of such appellate jurisdiction
as is not comprehended within it.
Tlle only inquiry then is whether the Legislature has Iprescribed any rule
for the exercise of appellate jurisdiction in( criminal cases whe-re tile appeal is
taken on behalf of tie State. From an examination of the statute it will be
perceived that no such rule has been prescribed. The first section gives the
riolht of appeal to the defendant. The second prescribes his duty in filing
bills of exceptions that the action of the court may be revised on appeal. The
third uses tile indefinite term of tlie "party taking the appeal." But this
must be construed in connection w\iti the other provisions of the statute, and
therefore used only as (lescriptive of the defendant. In the subsequent sections
tile regulations are all [5] made in reference to all appeal by the defendant,
and no rule having been prescribed for the exercise of tile jurisdiction
2
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5., book, 1883; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28569/m1/10/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .