Belcher v. State ( 1898 )

This case was affirmed at a former day of the term, and now comes before us on motion for rehearing. The principal question made on motion for rehearing is that the record fails to show any proof of venue. It appears that an assignment was made to this effect, but no stress was laid on the same originally, and the question was neither investigated nor discussed. The indictment was presented on the 30th of April, 1897, and charges that the offense was committed on the 8th of January, 1897. The trial was on June 1, 1897. The contention here is that the law of the Twenty-fifth Legislature, requiring the court to presume that the venue was proven, in the absence of any issue made in the court below on that question, which act was approved March 3, 1897 (see Laws Twenty-fifth Legislature, p. 11), did not go into effect until August 21, 1897, ninety days after the adjournment of the Legislature, and that consequently said law does not control this matter. We have examined the statement of facts carefully, and it does not show that the venue was proven. So, if it be true that said law had not gone into effect at the time of the trial of this case and when the record was made up, it must be reversed. The act in question contains the emergency clause, dispensing with the reading of the bill in the House on three several days, under section 32, article 3, of the Constitution; but does not contain the clause putting said act into effect at once, under section 39 of said article 3. So we take it that the act on its face shows that it only took effect as ordinary bills; that is, ninety days after the adjournment of the Legislature. If there were any doubt upon this question (which there is not) from the verbiage of the act itself, by reference to House Journal, page 109, it will be seen that the bill originally contained a clause putting it into immediate operation, but that this on motion was stricken out. We hold that the case having been tried before the law of the Twenty-fifth Legislature went into effect authorizing this court to presume, in the absence of any question, that the venue had been proven, and the case having been tried and the record made up under the law as it stood aforetime, it must be governed by the previous law and decisions on that subject. See Clark v. State (Texas Crim. App.), 39 S.W. Rep., 943. The motion for rehearing is accordingly granted, and the judgment is reversed and the cause remanded.

Motion granted. Reversed and remanded.