Crausby v. State , 115 Tex. Crim. 441 ( 1929 )

Because of an error in copying the trial court's extension order for filing bills of exception said bills were not considered originally. The error has been corrected by supplemental transcript and the bills will be considered.

The 40th Legislature, Reg. Sess. Chap. 22, page 72, changed the time for holding terms of court in the 72d Judicial District, composed in part of Crosby and Cochran Counties. By inadvertence the act of the Legislature in question provided that one term of court should begin in Crosby County "on the third Monday after the first Monday in September" and might continue in session four weeks, and that a term of court should begin in Cochran County "on the third Monday after the first Monday in September" and might continue two weeks. It is shown by bills of exception that the judge of said 72d Judicial District opened court in Crosby County at the time specified, which was Monday, September 24th. The grand jury was empaneled and instructed as to their duties and immediately begun their deliberations. The civil docket was called on Monday and cases set for trial. On Tuesday morning the judge called the appearance docket, after which he went direct to Cochran County and opened court there at three o'clock in the afternoon on Tuesday and called the appearance docket, and tried a civil suit involving some urgent matters. The judge finally adjourned the term of court in Cochran County on Wednesday and was back in Crosby County on Thursday morning and proceeded with the trial of cases there. When the judge left Crosby County to go to Cochran County no order recessing or adjourning court in Crosby County was entered. On Saturday, September 29th the grand jury returned into court a number of indictments, among them the one against this appellant.

It is appellant's contention that the act of the Legislature providing for the two terms of court in Crosby and Cochran Counties to begin at the same time presents an irreconcilable conflict which renders the act absolutely void in so far as it undertakes to provide for any regular September term of court in Crosby County, and therefore that the indictment returned against him and his trial at said purported term of court were without authority of law and void.

Appellant cites Ex parte Jones, 49 Ark. 110, 4 S.W. 639, which appears to support his contention. A number of authorities from other states are in direct opposition to the holding in the Jones case, which is the only one to which our attention has been called supporting appellant's extreme position. Brock v. Gale, 14 Fla. 523, 14 Am. Rep. 356, presents a case directly in point with the one at bar in which the court said,

"It is true that the court could not sit in both counties at the same time, but it does not follow that it could not sit in one county, the court was sitting in Duval, and was therefore not sitting in St. Johns. The judge held the term in Duval at the time named in the law for that purpose, as we think he might lawfully do."

In Wells on Jurisdiction of Courts, Sec. 134, appears the following statement,

"Where, by mistake, a law requires court to be held in two places in the circuit, on the same day, it is in the discretion of the judge to select which one he will hold; and under this selection the proceedings will be valid."

The text cites the Florida case (supra) and in turn the text is cited with approval in Carland v. Commissioners, 5 Montana 579, 6 P. 24. It has also been held that where a judge is required by law to hold court in two counties at the same time, that by means of adjournments so that actual sessions do not conflict, two terms, in different counties, presided over by the same judge, may be open at the same time. 15 Corpus Juris, Sec. 241, page 887; Territory v. P. Armigo, 14 N.M. 205,89 P. 267. This holding has in principle been sanctioned by our own court in Elliott v. State, 58 Tex.Crim. R., 125 S.W. 568; McIntosh v. State, 56 Tex.Crim. R., 120 S.W. 455; Wilson v. State, 87 Tex.Crim. R., 223 S.W. 217. However, the courts in different jurisdictions are not in harmony on the point last mentioned. See McVay v. State, 104 Ark. 629, 150 S.W. 125; In re Patswald, 5 Okla. 789, 50 P. 139. In McNeill v. McDuffie,119 N.C. 336, 25 S.E. 871, it appeared that the Legislature of North Carolina provided for a term of Court in Cumberland County on a certain day, and by a later act provided for a term in Richmond County on the same day, the two counties being in the same judicial district. The judge there did very much as he did in the instant case, held court in both counties and the appellate court very sagely remarked that if the trial judgefound it possible in fact to do this "we ought not to find itimpossible in law." It may be that in some instances a "term of court" has been confused with the court — judge — himself. He, of course, cannot be in two places at the same time, but it by no means follows as an impossibility that "terms of court" although presided over by the same judge, may not be in session in two places during the same period of time. We see no difference in principle in the circumstances here presented and those appearing in the Elliott, McIntosh and Wilson cases (supra). There the judge was holding a regular term of court in one county of his district and during such regular term he went to another county in his district and held a special term of court, going backward and forward to make orders and transact business of the courts. The very same attack was made on the indictments in the McIntosh and Elliot cases as is made here. We quote Judge Ramsey's language in McIntosh's case.

"Closely allied, and growing out of said question, is another claim and contention of appellant, that the indictment should have been quashed for the reason that the District Court of this Judicial District was in session in the adjoining county of Fannin at the same time as the special term of court under which he was sought to be convicted, and the contention is made, as we understand, that the court could not be in session at two different places at the same time. It is not denied, nor is it claimed, that Honorable Ben H. Denton, the legally elected judge, was not present throughout the trial, or that any injury resulted from the fact, if it be a fact, that a District Court was being held in the adjoining county. It is not disclosed by the bill of exception whether the court at Bonham was in recess or not, but it is clear to us that if the legally elected district judge was sitting in Paris, Lamar County, Texas, under a valid law, and under notice duly given, that the appellant could not claim that he ought to have been somewhere else. Not only the Act above quoted permits, but the constitution also authorizes, special terms of court in such manner as may be provided by law, and the appellant is in no position to complain, and claim the act of the grand jury indicting him was illegal because of the personality or the person occupying the district bench. He was the district judge, and the law empowered him to convene a special term of the District Court and for that purpose he might, if he saw proper, adjourn another court at a different place in his district, or suspend the session of said court in such other county, or recess the court in order to hold a special term, if public necessity and the public good required it."

It follows that we are of opinion that the term of court held in Crosby County was not unauthorized, and that no error was committed by the trial judge in the particulars complained of. This disposes of appellant's bills of exception numbers one and two. Having reached the conclusion that the term of court held in Crosby County was valid, the Elliott case (supra) directly answers appellant's complaint that the grand jury was working while the judge was absent for one day and part of another in Cochran County. He was present when the grand jury was empaneled and when the indictment was returned into court.

Bills of exception three, four and five have been examined. They do not in our opinion present error, or raise any question demanding discussion.

The motion for rehearing is overruled.

Overruled.