Matthews v. State

Appellant was convicted of violating the local option law, his punishment being assessed at a fine of $25 and twenty days imprisonment in the county jail.

The facts are sufficient to sustain the verdict. The evidence covered several transactions. There was no objection to the introduction of these various matters, and no election asked by appellant as to which transaction should form the basis of conviction. These matters occurred principally during the summer and fall of 1908.

1. The court charged the jury, in substance, that if they believed from the evidence beyond a reasonable doubt that at any time during the year 1908 and before the 11th day of December of that year, that appellant sold intoxicating liquor to the alleged purchaser, T.E. Bailey, they would find a verdict for the State. Exception was reserved to this charge because it did not correctly state the law as to the time within which appellant might or might not be convicted, because the same is an incorrect expression as to the time appellant could be convicted under the evidence. We are of opinion there is no merit in this contention. So far as this particular question is concerned, it seems to bear principally upon the question of limitation. The usual rule is, a party can be convicted in misdemeanor cases for violation of the law if it occurred within two years prior to the return of the indictment. The indictment in this case was returned on the 11th of December. Inasmuch as the State was not required to elect upon which transaction the conviction would be sought, there was no reversible error in the court giving the charge criticised. If the State had been required to elect upon which transaction a conviction would be sought, then the charge would have to be confined to the particular transaction relied upon by the State.

2. There was also an exception reserved to that portion of the court's charge which instructed the jury that they could not use as a fact against appellant that he failed to testify in his own behalf. This question has been decided so often adversely to appellant's contention we deem it unnecessary to cite authorities in support of the correctness of the court's charge.

3. Another bill of exceptions recites that appellant plead specially to the jurisdiction of the County Court to try this cause, because under article 5, section 17, of the State Constitution, the court is required to hold one term every month for criminal business, as may be provided by law; second, it is shown that there are no regular monthly terms of said County Court either provided by law or the Commissioners Court, and, third, because the present term of the court began on the first Monday in March and continues for eight weeks, which is in violation of said article 5, section 17, of the Constitution. Said article 5, section 17, does provide that the County Court shall hold a session every month for the disposition of criminal cases, as may be provided by law. Section 29 of the same article of the Constitution provides that the County Court shall hold at least four terms for both civil and criminal business annually, as may be provided by the Legislature, or by the Commissioners Court of the county under authority of law, and such other terms each year as may be fixed by the Commissioners Court, etc. The evidence in the bill of exceptions shows that the Commissioners Court had provided certain terms of the court, at one of which appellant was convicted. We deem it unnecessary to go into a discussion as to whether or not there is a conflict between these two provisions of the Constitution. The Commissioners Court, under authority vested in them by the Constitution and laws, did provide for terms of the County Court as shown in the bill of exceptions. At one of these terms appellant was tried. We are of opinion that appellant has no ground of complaint. The Constitution authorized the Commissioners Court to provide for terms at which civil and criminal causes could be tried. He was tried at a term of court authorized by law. In Hughes v. Doyle, 91 Tex. 421, 44 S.W. Rep., 64, the court said: "We are of opinion that the section of the Constitution referred to in the statement conferred power upon the Commissioners Court of the several counties in this State to regulate the times of holding the terms of the County Courts in their respective counties, within the limitations therein prescribed." This language of the court was construing section 29 of article 5 of the State Constitution. The Commissioners Court having authority to provide terms of court under section 29, supra, there would be no legal reason why a conviction should be set aside had at one of said terms, because of the failure of the County Court to hold a session for the disposition of criminal business exclusively once every month. The term at which appellant was convicted was authorized by law, and he cannot interpose the objection urged — that there was not a term held once every month. See also Ex parte Cole, 51 Tex.Crim. Rep., and Wilson v. State, 15 Texas Crim. App., 150.

There being no error in the record requiring a reversal, it is ordered that the judgment be affirmed.

Affirmed.

ON REHEARING. December 1, 1909.