Mayhew v. State , 69 Tex. Crim. 187 ( 1913 )

Appellant was convicted of manslaughter, his punishment being assessed at three years confinement in the penitentiary.

This is the second appeal of this case. On February 7, 1912, this case was reversed and mandate was issued on February 19th, the same month. On the 12th of February, 1912, the district judge, Thomas L. Blanton, entered an order as follows:

"It appearing to the court that the regular term of the January Term 1912 of the District Court of Eastland County, Texas, convened the first day of January, A.D. 1912, and by law could continue for eight weeks, or until and including the 25th day of February, 1912, but that because all business then on the docket subject to trial had been disposed of on the 31st day of January, 1912, court then adjourned; and it further appearing to the court that since said adjournment the cases of No. 2540, The State of Texas vs. Bill Mayhew, and No. 2666, The State of Texas vs. Will Drake, have been reversed by the Court of Criminal Appeals and that the mandates in same will have been duly returned to this court by the time hereinafter mentioned, and it further appearing to the court that the said Will Drake is now in jail without bond and that he is now entitled to bail, and it further appearing to the court that a necessity will exist for transferring said two cases on change of venue to another county and that unless such orders are made during the regular eight weeks allowed by law for said January Term 1912, said two cases will have to lie over until the next regular term of court six months hence, thus depriving both the defendant and State of a speedy trial, it is therefore ordered that said District Court of Eastland County, Texas, convene in special session at the courthouse in Eastland on the 24th day of February, A.D. 1912, at 8:30 o'clock A.M., to resume business under the regular January Term 1912 of said court and during such regular term time and only for the purpose of disposing the said two causes above mentioned, at which time said two defendants, Bill Mayhew and Will Drake, are hereby notified to be present, and the clerk hereof will spread this order upon the minutes of said court and issue and have precept and copy of this order served upon Messrs. H.P. Brelsford and J.J. Butts at once and copy and publish in the Eastland Chronicle.

"Done this February 12th, 1912.

Thomas L. Blanton, Judge 42nd Judicial District of Texas."

By the terms of this order it will be noticed that the January Term of the District Court of Eastland County convened in accordance with the statute on the first Monday in January, 1912, which fell upon the first day of the month, and that it could continue for eight weeks, but in fact did close on the 31st day of January "because all business then on the docket subject to trial had been disposed of on the 31st day of January, 1912, court then adjuorned." It further recites that it appeared to the trial judge that since the adjournment of his court two cases, No. 2540 against this appellant, and No. 2666 against Will Drake, had been reversed by the Court of Criminal Appeals, and that mandates would be returned into his court by the time hereinafter mentioned, which was the 24th of February, this order being entered on 12th day of February. It is further recited that "a necessity will exist for transferring said two cases on change of venue to another county and that unless such orders are made during the regular eight weeks allowed by law for said January Term 1912, said two cases will have to lie over until the next regular term of court six months hence, thus depriving both the defendant and State of a speedy trial; it is therefore ordered that said District Court of Eastland County, Texas, convene in special session at the court house in Eastland on the 24th day of February, A.D. 1912, at 8:30 o'clock a.m., to resume business under the regular January Term 1912 of said court and during such regular term time and only for the purpose of disposing of the said two causes above mentioned," etc. When this called resumption of the defunct term of court acted upon this change of venue there was an exception reserved not only to the change of venue but for many other reasons which are not necessary here to state. In the qualification to this bill the judge recites that the time for holding the aforesaid regular term is eight weeks, and that it could continue until the night of the 25th of February, 1912, but there being no further business to be transacted, the minutes were signed and approved, and court adjourned on January 31, 1912. Subsequently the mandates of the Court of Criminal Appeals reversing and remanding the two cases were returned into that court. Among other things in the qualification it is stated by the judge as follows: "AndFebruary 24, 1912, when said court convened, it was then a partof the regular term 1912 of same. The clerk of the District Courtof Eastland, Texas, will file this bill as a part of the recordin this case. Done this February 24, 1912." So I think it is conclusively shown by the statement of the judge, by his order and qualifications of the bill and the conceded facts, although it could last eight weeks, the court did not call a special term, and that there was not called a special term of the court, but merely a resumption of the regular term. This is the declaration of the judge who called the court. Instead of continuing the eight weeks until the 26th of February, it was adjourned on the 31st of January, and the minutes were approved in the regular manner by the trial judge, and that this order calling his court together, which was issued on the 12th day of February, 1912, wasa reopening of the regular term and not a special term calledunder the statute. It was expressly called by the judge as a reopening or resumption of the regular term. Therefore, all questions which might arise under the theory that it was a special term of court are not here involved. I am led to believe that the trial judge knew his purpose in calling the court andthe reasons for it, and he emphasizes the matter by stating thatit was a resumption or reopening of the regular term and not a special term. There is a difference between a regular and a special term of court. It is unnecessary to undertake to draw the distinction; they are made so by the Constitution and the statute, and the line of demarkation is definitely fixed. I hardly think it necessary to cite authorities or discuss the question that the district judge had no authority to open a regular term after it was closed — finally adjourned. It could have continued for the entire eight weeks, and the court could have taken a recess from day to day or longer and continued the regular term in vogue, but this was not done; it was closed finally. This eliminated all authority of the judge to reopen the regular term. Special terms are authorized to meet contingencies arising after the adjournment of the regular term; however, it is unnecessary to go into a review and reasons why special terms are authorized. The authorization of special terms would probably be unnecessary if the judge could open his regular term at any time he saw proper. So I understand it to be clear from this record that thecourt did not call a special term, but only reopened or undertookto reopen the regular term, and this he could not do, and from this viewpoint any order he might make would be ultra vires and of no effect; in fact and in law all orders entered by the judge under this call were void. It would follow, therefore, that the order entered by the judge on the 12th of February calling the court together on the 24th would necessarily be void. The transfer of the case from Eastland to Shackleford County by virtue of this order would therefore be a nullity. The District Court of Shackelford County would, therefore, have no jurisdiction of the case, for the reason the order changing venue was not authorized.

Viewed from another's standpoint, the order of the district judge is void. The order of the 12th of February was made while this case was pending in the Court of Criminal Appeals. While the judgment of the lower court had been reversed on the 7th of February, the mandate did not issue to the District Court until the 19th of February, as this court judicially knows from its own records. What time it reached the court is somewhat speculative, but it may have reached that court before the 24th of February, the time the order was made changing the venue. However that may be, the order on the 12th of February being void, all subsequent actions in the matter based thereon would be equally void, because they all depended upon that order. Art. 884, White's Ann. Code of Criminal Procedure, reads as follows: "The effect of an appeal is to suspend and arrest all further proceedings in the case in the court in which the conviction was had until the judgment of the appellate court is received by the court from which the appeal is taken; provided, that in cases where, after notice of appeal has been given, the record or any portion thereof is lost or destroyed, it may be substituted in the lower court, if said court be then in session, and when so substituted the transcript may be prepared and sent up as in other cases. In case the court from which the appeal was taken be not then in session, the Court of Appeals shall postpone the consideration of such appeal until the next term of said court from which said appeal was taken, and the said record shall be substituted at said term, as in other cases." The effect of this statute is to deprive the trial court of all authority to enter any order or take any steps in regard to the appealed case until the judgment of the Court of Criminal Appeals has been received by the court from which the appeal was taken. The authorities are uniform and unbroken in this interpretation or construction of this statute. In fact, the statute needs no construction. The language is all sufficiently plain to construe or interpret itself. There has been some legislation which authorizes the filing of a recognizance or appeal bond, as the case may be, in this court where such instruments are held sufficiently defective to cause a dismissal of the appeal, but that has no connection with this matter, and possibly it might be said in scire facias cases some matters might be entered nunc pro tunc, but if such be the case it is based upon the theory that scire facias is civil case after forfeiture is taken on the bond. I mention these in passing so there will be no apparent conflict. I suppose, however, the legal fraternity would understand there was none without referring to those matters. In Nichols v. State, 55 Tex.Crim. Rep., in an opinion by Judge Ramsey, it was said, quoting approvingly another decision: "It would seem from a proper construction of this statute that, pending appeal to this court, the trial court from which said appeal is taken can take no steps with reference to the case until this court has finally disposed of said appeal, except where some portion of that record has been lost or destroyed after notice of appeal has been given." Again, it was stated and held in the case of Lewis v. State, 34 Tex.Crim. Rep.: "This statute, as we understand it, deprives the trial court of all jurisdiction of the case except for the purpose stated, when the appeal has gone into effect. Whether the rule provided is beneficial is not for us to decide. It is the declared will of the legislative mind, and within the scope of the authority of that body to declare. It puts an end to the time when defective records can be amended pending appeal. This statute furnishes the rule of practice in such cases, and this court will adhere to it." The same construction was announced in Quarels v. State, 37 Tex. Crim. 362. See also Sheegog v. State, 39 Tex.Crim. Rep.. In Saufley v. State, 48 Tex.Crim. Rep., it was held that motions amending original motion for new trial cannot be filed in the trial court after an appeal is taken. See also Reed v. State, 42 Tex.Crim. Rep.. In many cases it has been held the court has no authority after appeal to enter recognizances nunc pro tunc. See Morse v. State, 39 Tex.Crim. Rep.; Freshman v. State, 39 S.W. Rep., 1118; Quarels v. State, 40 Tex. Crim. 353; Clay v. State, 56 Tex.Crim. Rep.; Youngman v. State, 38 Tex.Crim. Rep.; Estes v. State, 38 Tex. Crim. 506; Dement v. State, 39 Tex.Crim. Rep.; Donnelly v. State, 51 S.W. Rep., 228; Maxey v. State, 41 Tex. Crim. 556. These cases passed on many questions arising after notice of appeal, each and all of them holding that after the jurisdiction of this court has attached no order can be made in the trial court of any character except as authorized by statute. Hinman v. State, 54 Tex.Crim. Rep.. See also White's Ann. Crim. Proc., sec. 1236. It would seem unnecessary to cite authorities in support of the announced proposition that the court below lost all jurisdiction while the case was pending in this court, and that it could not assume any jurisdiction in the case for any purpose until after mandate of this court had been filed in the lower court. The statute and the cases make this rule absolute.

The action of the court to call a special session or reopen court was based upon the proposition that a speedy trial alike for the State and the defendant could not be had unless the court ordered a change of venue; that it would be six months before the District Court should again convene in regular session. The law does not authorize a speedy public trial for the State. The State is not on trial. The Constitution guarantees a speedy public trial to the accused. He did not seem to be anxious to have the trial in the manner indicated by the district judge. He was fighting the change of venue with considerable vehemence. As we understand the statute with reference to change of venue, it does not authorize the transfer of cases from one county to another on the ground of speedy public trial; at least not in this character of case. There is a statute of venue with reference to rape, but this is not a case of rape. This is a case of homicide, and the fact that the statute confines itself to questions of venue in rape cases under a given state of facts emphasizes the fact that homicide cases were not included. The inclusion of the crime of rape in that particular statute, and rape only, emphasizes the fact that other offenses were excluded.

A great deal of testimony was also introduced as to the condition of Eastland County with reference to this case, whether the State and defendant alike could have a fair trial. That seems to have gotten into the trial of the case on the 24th of February, at the time of the transfer on change of venue was made. It had not theretofore entered into or become a part of the case. The judge had not specified this as a reason for reopening his court. We have read the testimony in regard to the state of public opinion in regard to the case as evidenced by the witnesses, and fail to find any evidence in the case that showed otherwise than that an impartial trial could be had in the county. All of the witnesses who testified in regard to the matter, many of whom were officers, a majority of the witnesses were county officials, make it apparent that there was no basis for a change of venue for this reason. It was not even contended by the State that such a condition of affairs existed, but by the State that fact was denied. One of the private counsel for the prosecution testified in the case to this effect. The truth of the matter seems to be from the order of the court and all the record, that the transfer was made only for the purpose of having a more speedy trial of the case by transferring it to another county where court could be held before the Eastland District Court would be convened. If it was necessary to decide this question, we are of opinion the court erred in transferring it from this viewpoint. Moore v. State, 46 Tex.Crim. Rep.. Change of venue by the judge is not arbitrarily confided to him or his discretion. His discretion is to be exercised in the interest of fair trial and impartial justice.

There are some questions presented, in my judgment, which would require a reversal, but I pass those without further discussion.

The judgment ought to be reversed and the case remanded.