text:
    ALLEN v. STATE.
    (No. 4784.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1917.)
    L Criminal Law <S=>564(3) — Venue—Proof.
    Yenue in a criminal action may be shown by circumstantial evidence, and need not be proven beyond a reasonable doubt.
    2. Criminal Law <§=>1117 — Appeal—Venue op Action — Presumption.
    Under Code Cr. Proc. 1911, art. 938, providing that on appeal venue will be presumed to have been proven, unless made an issue in the court below, to review the question as to whether venue was proved, the bills of exceptions must certify either that venue was not proved, or set out all the evidence bearing on the issue.
    3. Criminal Law <§=>564(1) — Venue—Proop.
    In a prosecution for perjury before the grand jury, evidence held sufficient to establish the fact that the crime had been committed in the county charged.
    4. Perjury <§=>33(1) — Proof— Sufficiency.
    Evidence held sufficient to support a conviction of perjury.
    5. Witnesses <§=>337(6) — Credibility—Cross-Examination.
    In a prosecution for perjury, it was admissible, as affecting credibility, to ask defendant on cross-examination if he had been charged with seduction.
    6. Criminal Law <§=>720(3) — Comment by Prosecuting Attorney — Evidence.
    In a prosecution for perjury, evidence that defendant got a certain female drunk on whisky which he was charged with having testified falsely to have bought from a certain person, having told the girl that he bought it one place but for her to say he got it somewhere else, being part of the res gestae and admitted without objection, it was proper for the district attorney to comment thereon.
    Appeal from District Court, Titus County; J. R. Warren, Judge.
    0-. A. Allen was convicted of perjury, and he appeals.
    Affirmed.
    Rogers & Cook, of Mt. Pleasant, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This conviction is for perjury. The indictment charged perjury before the grand jury of Titus county in making under oath therein a false statement by appellant that he had bought whisky from John Lennox. Some of the grand jurors testified to the facts, in detail, showing that appellant appeared before the grand, jury; that the oath was duly administered, and that appellant gave the testimony set out in the indictment.

The record shows that the trial was had at the June term of the district court of Titus county in 1917, and¡ that the indictment was returned in said court at that term, it having been filed on the 19th day of June, 1917. Upon this indictment appellant was arraigned, and it with its indorsements was in^the hands of the grand jury. It was signed F. E. Fleming, foreman of the grand jury.

The appellant presented a special charge, which was refused and is preserved in bill of exceptions No. 1, from which it appears the court was requested to instruct a verdict of not guilty, to which exception was reserved in the following language:

“To which action of the court the defendant, by his counsel, then and there excepted, on the ground that the state, failed to prove that the false statements, which the 'defendant wats charged, in the indictment under which he was tried herein, to have made were made in Titus county, Tex., and because the testimony failed to show that the grand jury of which F. E. Fleming was foreman, and before which the state’s testimony showed that said false statements were made, was a grand jury in and for Titus county, Tex., or any other county, or in the state of Texas. Defendant here now insists that venue was not proven in said case as is required by law, and for said peremptory instruction should have been given.”

Article 93S, C. O. P., contains the following with reference to the procedure in the Court of Criminal Appeals:

“In all cases, the court shall presume that the venue was proven in the court below, * * * unless such matters were made an issue in the court below, and it affirmatively appears to the contrary by a bill of exceptions.”

Soon after this statute was enacted in 1897, this court, in the ease of McGlasson v. State, 38 Tex. Cr. R. 360, 43 S. W. 93, a case in which a special charge in substance likp the one in question here, expressed itself as follows:

“It occurs to us that this statute requires the court to indulge the presumption that the venue was proved in the court below, unless the bill of exceptions shows affirmatively that it was not proved. This would seem to apprehend that, before we can treat the venue as not proved, the court must either certify that the evidence did not establish the venue, or that said bill of exceptions should contain all the testimony in the case tending to show venue, and certify that same was all the testimony bearing upon that issue; and from this statement of the testimony it affirmatively appears that the venue in the case was not proved. If this be a true construction of said article, then the bill in question does not comply with the requirements of the law.”

Since that decision was rendered it has been followed as stating the correct rule. Lane v. State, 69 Tex. Cr. R. 65, 152 S. W. 899; Johnson v. State, 72 Tex. Cr. R. 389, 162 S. W. 512; Scott v. State, 42 Tex. Cr. R. 607, 62 S. W. 419; Garrett v. State, 61 Tex. Cr. R. 515, 135 S. W. 532; Brown v. .State, 71 Tex. Cr. R. 353, 162 S. W. 339.

"Venue may be proved by circumstantial evidence (Steadham v. State, 40 Tex. Cr. R. 43, 48 S. W. 177; Pye v. State, 71 Tex. Cr. R. 94, 154 S. W. 222), and) its proof beyond a reasonable doubt is not required (Johnson v. State, 72 Tex. Cr. R. 387, 162 S. W. 512). The hill of exceptions to the refusal of the charge mentioned does not set out the evidence so as to negative the proof of venue nor does it certify as a fact that venue was not proved. The hill contains only the reasons assigned by appellant for his exception. This does not verify the facts recited in these grounds. Branch’s Ann. P. C. p. 134, § 209; Smith v. State, 4 Tex. App. 630; Arnold v. State, 74 Tex. Cr. R. 269, 168 S. W. 125.

If, however, the record and statement oí facts is looked to, we find that at a term of the district court of Titus county beginning the 4th of June, 1917, the indictment in this case, signed F. E. Fleming, foreman, was filed the 19th day of June, 1917, and that at the trial of appellant during the same term the witness F. B. Fleming testified that he was foreman of the presen! grand jury which had been in session about 15 days, and that appellant appeared before it and testified, and he and another grand juror testified that the evidence given by the appellant before the grand jury of which they were members related to an investigation as to whether appellant purchased whisky from John Lennox or not. The circumstances and testimony thus developed were, we think, sufficient to establish the fact that the transaction described in the indictment took place before the grand jury of Titusj county in that county. McGlasson v. State, 38 Tex. Cr. R. 360, 43 S. W. 93; Vernon's C. C. P. p. 899, note 4,. and cases cited; Deggs v. State, 7 Tex. App. 359; Murphree v. State, 55 Tex. Cr. R. 318, 115 S. W. 1189, and other cases listed in. Branch’s Ann. P. C. p. 235, § 451.

The evidence shows that appellant testified before the grand jury that he purchased whisky from John Lennox. Appellant testified on the trial that he did purchase a bottle of whisky from John Lennox and paid him therefor, giving specific details as to the time and place of the sale. It appears from appellant’s testimony and that of state’s witnesses that on a night in April, 1917, a man by the name of Ragland, his wife, and a young lady, Bliss Hill, were riding in Rag-land’s hack, and that appellant, who was riding horseback, joined them, tied his horse to the hack, and rode with them; that Rag-land had a pint of whisky which the party drank, and that Ragland then suggested to appellant that if he (appellant) would buy some more whisky that he (Ragland) would furnish the money; that appellant agreed to do so and left the party for a time, as to the length of which the evidence is conflicting, and returned with a quart of whisky, and that he told Miss Hill on his return that he got the whisky from a Mrs. Hall, BIr. Ab Hall’s wife. Miss Hill testified that the morning after appellant got the whisky he told her that if anything was said about where he got the whisky to say that he got it from John Lennox, and told her that he got it from John Lennox. John Lennox denied selling appellant any whisky; denied seeing him on the night in question, claiming that he was at his home where his father and mother resided; that he retired early and did not leave his house that night. His testimony was corroborated by his father and mother. The appellant testified that he was charged with giving the girl, Miss Hill, whisky and making her drunk; that he ran off the night they arrested him, and that Grover Holcomb came and got him, and that the officers told him if he would tell from whom he got the whisky they would not put him in jail. Appellant claimed that when he went to buy the whisky he met Lennox some 200 yards from Lennox’s house and there got the whisky from him.

The appellant insists that the evidence fails to meet the requirements of the statute which requires proof of perjury by two credible witnesses, or .of one credible witness corroborated strongly by other evidence as to the falsity of the statement under. oath. John Lennox, who meets the requirements of a credible witness, testified to facts showing the falsity of appellant’s testimony in the grand jury room; that is to say, that Len-nox testified he did not sell appellant whisky. Appellant by his testimony identifies the time and place of the alleged purchase with accuracy. The testimony of the father and mother of Lennox, if believed, was sufficient to establish the fact that, at the time appellant claims to h?ive purchased the whisky from John Lennox, the latter was at his home some distance from the place where appellant claims he met him, and from their testimony, if believed, the jury was authorized to find that appellant’s statement that he bought the whisky at the only time and place he claims to have bought it from John Lennox was not true. This corroborating evidence is supplemented by the testimony of Miss Hill to the effect that when appellant returned with the whisky in his possession he stated that he got it from Mrs. Hall, and by her further testimony that on the following day, when it circumstantially appears that appellant anticipated that trouble would grow out of the transaction, he told her that if the question was raised about where he got the whisky to say that he got it from John Lennox. The testimony of the father and mother of Lennox strongly tended to show the falsity of appellant’s testimony before the grand jury to the effect that he did buy the whisky from John Lennox. Franklin v. State, 38 Tex. Cr. R. 346, 43 S. W. 85. Mr. Branch, in his Texas Annotated P. O. p. 480, makes the following statement which is pertinent:

“It is not required that the state’s witnesses must swear directly adversely to the alleged false statement, but it is sufficient when the • facts sworn to, if true, conclusively , demonstrate that defendant swore falsely. Maines v. State, 26 Tex. App. 22, 9 S. W. 51; Beach v. State, 32 Tex. Cr. R. 240, 22 S. W. 976; Miles v. State [73 Tex. Cr. R. 493], 165 S. W. 567; Miller v. State, 42 Tex. Cr. R. 385, 60 S. W. 673.”

A bill of exceptions complains of the fact that the trial court refused to sustain an objection to an inquiry made to appellant while he was on cross-examination, as to whether he had been charged with seduction. This character of testimony is admissible as affecting credibility. Ross v. State, 40 Tex. Cr. R. 352, 50 S. W. 336; White v. State, 61 Tex. Cr. R. 498, 135 S. W. 562; Bedford v. State, 170 S. W. 727; Warren v. State, 33 Tex. Cr. R. 502, 26 S. W. 1082; Rutherford v. State, 34 S. W. 271; Chance v. State, 63 Tex. Cr. R. 602, 141 S. W. 113; Black v. State, 68 Tex. Cr. R. 151, 151 S. W. 1053.

There was evidence that Miss Irene Hill, the young lady who was with appellant at the time he was in the wagon mentioned above, took several drinks of whisky with the appellant, and evidence from which the jury was justified in concluding that it made her drunk. This was a part of the res gestae, and in evidence without objection, and the comment upon it by the district attorney, complained of in appellant’s bill of exceptions, was not unwarranted.

Finding the evidence sufficient to support the conviction, and no reversible error in the conduct. of the trial, the judgment of the lower court is affirmed.
      <§=>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J. PRENDERGAST, J.

license: Public Domain

text:
    REYNOLDS v. STATE.
    (No. 4641.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1917.
    Dissenting Opinion, Dec. 31, 1917.)
    1. Criminal Law <S=539(2) — Statements in Preliminary Proceedings — Warning.
    Where one was examined as a witness in proceedings before a magistrate or on a coroner’s inquest, and was then aware that he was charged or suspected of the crime under investigation, his testimony there cannot be received against him upon his trial for the same offense, unless he was warned.
    2. Criminal Law <®=>539(2) — Statements in Preliminary Proceedings — Warning.
    Accused’s testimony on such investigation, introduced to fix culpability upon some one, especially upon accused, and which placed her at the scene of the homicide in a position where she could have used the gun, and excluded the presence of everybody except herself and deceased, was not admissible on the ground that it was merely exculpatory.
    3. Criminal Law <®=>899 — Waiver.
    In a trial for homicide, error in admitting the statements of defendant on a preliminary investigation in which she was charged or suspected of the crime was not waived by the fact that she took the stand to explain the testimony or lessen its consequences.
    4. Criminal Law <⅜^1169(5) — Harmless Error-Admission oe Evidence — Limitation ¿by Charge.
    The court cannot limit the effect of erroneous testimony by a charge.
    Prendergast, J., dissenting.
    Appeal from District Court, Potter County ; Hugh L. Umphres, Judge.
    Florence Reynolds was convicted of murder, and she appeals.
    Reversed, and cause remanded.
    Reeder & Reeder and J. B. Dooley, all of Amarillo, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder, and allotted 20 years’ confinement in the penitentiary.

The evidence discloses that she and her husband, the deceased, were hunting. They were riding in a buggy, she doing the driving. .Her husband was very fond of hunting, and they were out on this occasion, as they had been on many previous occasions, killing rabbits with which to feed their turkeys, of which they had about 200. On this particular occasion several rabbits had been killed, and he had the buggy stopped suddenly upon discovering three rabbits in a bunch. He jumped out of the buggy to kill the rabbits, and when the gun went off he fell to the ground shot. The evidence shows that they had a pistol, a rifle, and a shotgun in the buggy, and that the deceased used the rifle and the shotgun at his pleasure in shooting rabbits, and seems to have been a very fine shot. The shotgun was cocked, the breech was on the seat, with the barrel back against the buggy top, which seems to have been let down. His custom was to so carry the shotgun. The body of deceased was found by the .side of the buggy lying with his feet a little northeast and his head a little south, not quite or exactly parallel with the buggy. The wound was inflicted by the discharge of the shotgun. By the side of the body was found the rifle and the shotgun, being upon opposite sides of his body. The wife was the only one present at the time of his death. The authorities instituted an investigation, and held what the witnesses term a coroner’s inquest just after the killing. The body was carried to town, and the next morning at the courthouse another proceeding was had in the nature of a court inquiry, or a continuance of the investigation begun the evening before, or an examining court. Whatever it may be termed, they were investigating the facts and trying to ascertain the cause of the killing and how it occurred. The wife was suspected, and was under investigation. She was much depressed over the death of her husband, and when it was sought to bring her before the investigating court, the physicians advised against it as did her father. The court had her brought anyway, and she was informed by her father, and she understood that she was suspected of having shot her husband. She was brought by the officers under process before the court, or justice of the peace, and required to testify. There was no warning given her that what she might say might be used against her. Her statements were reduced to writing, and signed by her. We deem it unnecessary to go into a detailed statement of her evidence. Briefly, it may be' stated, she testified they went hunting, and when her husband got out of the buggy he took a gun, doubtless the rifle, and when he got ready to shoot at the rabbits, she put her fingers to her ears and shut her eyes, as she did not like to hear the discharge of the gun. She heard an explosion, looked, and saw her husband falling. She did not know how the matter occurred, but from the position of the shotgun in the buggy she supposed it had fallen or was jerked out by him, and, as it was cocked, it exploded, and the load of shot went into his back, his back being to the buggy at the time of the explosion. It was elicited from her that her husband had taken out a $5,000 insurance policy a month or two before his death. There are other details under rigid examination to try to fasten the guilt upon her as the cause of her husband’s death. While she was being examined the grand jury was in session in a room of the courthouse on the same floor, and was brought in and heard her testimony. When she finished testifying ' the grand jury retired to their room. Objection was urged to the introduction of her statement under the circumstances. The court erred in permitting this testimony. We hardly deem it necessary to go into a discussion of this matter as the authorities are numerous and all one vraf.

Since the case of Wood v. State, 22 Tex. App. 431, 3 S. W. 336, the rule has been followed that if, when a party is examined as a witness in proceedings before a magistrate or a coroner’s inquest, he is charged or suspected of the crime then under investigation, and is then aware that he is so charged or suspected, his testimony before the investigation cannot be received against him upon his trial for the same offense. That rule has been followed in all decisions bearing upon that question. If she had been warned, a different proposition might be presented, but she was not, and from that viewpoint this testimony cannot be used against her. Wood v. State, supra; Carter v. State, 37 Tex. 362; Nolen v. State, 8 Tex. App. 585; Nolen v. State, 9 Tex. App. 419; Myers v. State, 6 Tex. App. 1; Speer v. State, 4 Tex. App. 474; Gilder v. State, 35 Tex. Cr. R. 360, 33 S. W. 867; Twiggs v. State, 75 S. W. 531; Fry v. State, 58 Tex. Cr. R. 169, 124 S. W. 920; Simmons v. State, 184 S. W. 226; Dover v. State, 197 S. W. 192; Oliver v. State, 197 S. W. 185, and Calloway v. State, 55 Tex. Cr. R. 262, 116 S. W. 575.

It is contended by the state that her testimony was exculpatory. We hardly think this worthy of serious consideration. The state did not introduce it as exculpatory evidence, but it was introduced expressly as shown by the testimony to fix the culpability upon somebody, and especially upon appellant. It was used for that purpose, and introduced for that purpose. It placed her at the scene of the tragedy; it placed her in position where she could have used the gun, gave her an opportunity, and excludes the presence of everybody else except herself and the deceased.

It is contended by the state that, inasmuch as she testified, this would render the error of the court harmless, because she testified practically upon the witness stand as she did before the examining court. She makes one change, at least, in her testimony on the trial from her testimony before the examining court. Before the examining court she stated that he had the insurance policy about a month. On the trial she stated only a day or two, but the explanation she gave was this, that they had applied for it about a month or so before the killing, and had only received it a day or two before the killing. It is here stated that, when the state introduced this illegal testimony against appellant, over her objection, the fact that she went upon the stand to make an explanation or testify did not cure the error. It was that written statement introduced over her protest that caused her to take the stand during the trial and testify before the jury. A party does not waive errors of this- sort where they are committed over his protest by taking the stand or introducing evidence to lessen the consequences of it as far as may be done. The error of the court was not by this manner waived.

Again it is contended by the state that the court undertook to charge out its effect. This did not cure it.' The court cannot limit the effect of erroneous testimony by a charge.

The judgment is reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting).

I do not concur in all the statement of the case by Judge DAVIDSON’S opinion. However, it is wholly unnecessary for me to state the facts, except that appellant did not go on the stand to testify to explain her written sworn testimony before the examining court. On the contrary, she voluntarily took the stand and testified for herself in order to try to induce the jury to acquit her. But, whatever induced her to testify, her testimony on this trial was precisely, in substance, her testimony on the examining trial, with the sole exception of when the insurance policy was secured by deceased for her; and unquestionably, on this point, her evidence on this trial was worse for her than on the examining trial. So that undoubtedly the admission of her testimony at the examining trial was perfectly harmless, and to reverse this case because of its admission, even if error, is to substitute the shadow for the substance, and reverse on a wholly academic point neither authorized nor justified in law or justice. Undoubtedly the state can, on another trial, prove what she swore on this trial.

This case should have been affirmed, not reversed.
      '<S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    Ex parte McKAY.
    (No. 4822.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917.)
    1. Indictment and Information <s=>7—Time of Finding and Returning Indictment-Session oe Court—'Validity—Statutes.
    Acts 34th Leg. e. 17, creating the criminal district court of Travis county, by section 4, subd. “d,” provides for a term in that county beginning the first Monday in June, which might continue to and including the first Saturday after the third Monday in July, and for a term running from October to December, unless continued longer by the judge by an order duly entered. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1726, provides that, when the district court shall he in. the midst of the trial of any cause when the term expires, the judge may extend the term until conclusion of the trial by order shown on the minutes of the court. Code Cr. Proc. 1911, art. 445, provides that an indictment returned after the' court has expired is void. The judge of such court at the June term, 1917, on July 21st entered an order, reciting a necessity, extending the term to July 28th, and the grand jury continued in session until July 27th when the indictment was found against petitioner. Held, that the indictment was not void because not found during or returned in a court in session.
    2. Habeas Cobptjs <§=>29 — Nature of Proceeding — “Collateral Proceeding.”
    A habeas corpus proceeding is a collateral, and not a direct, proceeding, and is available against an order of court only in the event the order is void.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Collateral Proceeding.]
    3. Judgment <§=>470. — Jurisdiction — Presumption.
    When a court has jurisdiction to enter a particular order or render a given judgment, and in its exercise enters an order or judgment regular on its face, its validity is conclusively presumed, unless set aside or annulled in a direct proceeding.
    4. Judgment <§=>517 — Collateral Attack— “Jurisdiction” — Evidence.
    In a collateral attack upon a judgment of a domestic court of general jurisdiction regular on its face, inquiry by evidence aliunde the record into any fact which the court rendering such judgment must have passed upon is precluded ; “jurisdiction” meaning simple power to determine and give judgment.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Jurisdiction.]
    5. Judgment <§=>489 — Validity — Jurisdiction of Court.
    A judgment rendered when a court is not in session is not the judgment of the court, and is void in any proceeding when that fact is shown.
    6. Judgment <§=>486(1) — Session of Couro>-Order — Color of Law.
    Judgment rendered when a court is not and cannot be in session is without color of law, but a judgment rendered by a court purporting to be in session under an order regular on its face and authorized by law is under color of law, and import verity except upon direct attack.
    7. Habeas Corpus <§=>4^-Relief — Remedy by Appeal.
    Primarily the jurisdiction of the Court of Criminal Appeals is appellate, and generally, where complete relief against any supposed error will be afforded by appeal, the writ of habeas corpus is not available.
    8. Habeas Corpus <§=>30(2) — Ground—Irregular Charge of Offense.
    When an indictment regularly presented attempts to charge the accused with an offense defined by the Code, a discharge on habeas corpus will not be awarded, however irregularly the offense may be charged, though, if the offense charged is unknown to the law, the accused will be discharged on habeas corpus.
    9. States <§=>81 — Secretary of State — Failure to Pay over Money — Repeal of Statutes.
    Pen. Code 1911, art. 96, makes it an offense for any officer receiving public moneys to fraudulently misapply it or fail to pay it over to the person entitled to receive it, and article 97 defines certain acts to be included within the term “misapplication of public money.” The Depositary Law* of 1905 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2434) provides that, if any officer receiving state funds refuses to deposit them, he shall be liable on his official bond, and article 2431 provides that any person required to pay over state moneys may remit or deposit in a state depositary, and a subséquent enactment (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3837, 8838, 3840) enumerate the fees and charges which may be made by the secretary of state, and require such fees to be paid over to the ' state treasury monthly. Held, that Pen. Code 1911, arts. 96 and 97, were not repealed, and that the failure of the secretary of state to pay public moneys coming into his hands officially into the state treasury within a certain time is an offense.
    10. Habeas Corpus <§=>4 — Irregularity — . Appeal.
    Whether an indictment contains irregularities will not be passed upon on habeas corpus; that being a question which the court refuses to consider except upon appeal.
    Original habeas corpus by John G. McKay.
    Application dismissed.
    A. L. Curtis, of Belton, and Martin & McDonald, of Austin, for relator. B. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Relator, in an original application for writ of habeas corpus, seeks his discharge from the custody of the sheriff of Travis county, who holds him under process purporting to issue from the criminal district court under an indictment for a felony.

Relator insists that the indictment is void, and his restraint therefore illegal. The charged invalidity of the indictment is based in part upon the assertion that it was not found during or returned in a court in session. The indictment purports to have been returned into the criminal district court of Travis county. This court was created by chapter 17, p. 27, of the Acts of the Thirty-Fourth Legislature. It reorganized the Twenty-Sixth and Fifty-Third judicial districts, composed of Travis and Williamson counties, assigning to them the greater part of the civil litigation, and created in said counties the criminal district court, giving it jurisdiction of criminal matters and divorce proceedings.

In section 4 of the act the judge of said court is given the same powers that are vested in other district judges, and in the same section, subdivision (d), the terms of court are designated in the following language:

“The terms of said criminal district court shall be held each year as follows: in the county of Williamson on the first Monday in January, May and September, and continue in session for four weeks, unless continued longer by the judge thereof by an order duly entered; in Travis county on the first Monday in February, and may continue in session to and including the last Saturday before the first Monday in April; on the first Slonday in June, and may continue to and including the first Saturday after the third Monday in July; and on the first Monday in October, and may continue in session to and including the last Saturday before the twenty-fifth of December, unless continued longer by the judge of said court by an order duly entered.”

The minutes of the Criminal District Court contain the following entry:

“Order Extending Term of Court.
“And now on this the 21st day of July, A. D. 1917, it appearing to the court that a necessity exists for the extending of this, the June term, A. D. 1917, of the criminal district court of Travis county, Tex., on account of veiy important unfinished business of this court and for such reason:
“It is hereby ordered, adjudged, and decreed by tbe court that this, the June term, A. D. 1917, of the criminal district court of Travis county, Tex., be, and the same is hereby, extended until and including Saturday, July 28, A. D. 1917. James R. Hamilton,
“Judge Criminal District Court,
“Travis County, Texas.”

The grand jury, regularly organized at the beginning of the term, continued in session until the 27th day of July, 1917, on which day the indictment in question was returned by them.

The general law of the state (Yernon’s Civil Statutes, art. 1726) contains the following provision:

“Whenever any distriict court shall be in the midst of the trial of any cause when the time for the expiration of the term of said court, as fixed by law, shall arrive, the judge presiding shall have the power and may if he deems it expedient, extend the term of said court until the conclusion of such pending trial. In such case, the extension of such term shall be shown in the minutes of the court before they are signed.”

If, when the indictment was returned, the term of the court had expired, the indictment is void. Article 445, C. C. P. The question as to the invalidity of the indictment therefore turns upon the question as to whether or not on the 27th day of July, 1917, when it was presented, the term of court at which the grand jury was organized was still in session. The court having undertaken to extend the term by the order quoted above, made and entered on the minutes on the 21st day of July, 1917, it follows that, unless this order was void, the court was still in session.

The position of the relator is that the order mentioned was void. His contention is that it cannot rest upon the special statute creating the criminal district court of Travis county, for the reason that by the terms of that statute any special power that was given the court to extend its term was limited to the October term of said court, and that it cannot rest upon the general statute giving the district courts the authority to extend their terms, because the' facts or conditions under which district courts are given such power did not in this instance exist. Supporting this last-named contention, it is shown by the agreed statement of facts that on the 21st day of July, 1917, when the court made its order extending the July term, “that the court was not in the midst of the trial of any case.” Assuming that the power to extend the term rests alone upon the general statute, the question arises: First, can the relator in a habeas corpus proceeding attack the order of the court extending the term by making proof that the facts which authorizes the court to extend its term did not exist?' A habeas corpus proceeding is a collateral, and not a direct, proceeding, and is available against an order nf court only in the event the order is void. Ex parte Dickerson, 30 Tex. App. 448, 17 S. W. 1076; Ex parte Boland, 11 Tex. App. 159; Ex parte Japan, 36 Tex. Cr. R. 482, 38 S. W. 43; Ex parte Ezell, 40 Tex. 451, 19 Am. Rep. 32; Perry v. State, 41 Tex. 488; Ex parte Scwartz, 2 Tex. App. 74, and numerous cases cited in Michie’s Crim. Digest, p. 441; Ex parte Degener, 30 Tex. App. 566, 17 S. W. 1111.

It is a general and well-established rule that, when a court has jurisdiction.to enter a particular order or render a given judgment, and in the exercise of this jurisdiction enters an order or judgment regular on its face, its validity is conclusively presumed unless set aside or annulled in a direct proceeding. 23Cyc. 1055; Sutherland v. De Leon, 1 Tex. 250, 46 Am. Dec. 100; Martin v. Burns, 80 Tex. 676, 16 S. W. 1072; Murchison v. White, 54 Tex. 78; Michie’s Digest of Texas Reports (Civil Cases) vol. 11, p. 133, subd. 9, and cases there cited.

The Supreme Court, in the case of Crawford v. McDonald, 88 Tex. 630, 33 S. W. 328, laid down the rule in the following language:

“There is, however, another rule of law equally well settled upon principles of public policy •which precludes inquiry by evidence aliunde the record in a collateral attack upon a judgment of a domestic court of general jurisdiction, regular on its face, into any fact which the court rendering such judgment must have passed upon in proceeding to its rendition.”

This principle is of universal application, and has been applied in courts of Texas throughout their history. Williams v. Ball, 52 Tex. 603, 36 Am. Rep. 730; Brown v. Christie, 27 Tex. 73, 84 Am. Dec. 607; Heck v. Martin, 75 Tex. 469, 13 S. W. 51, 17 Am. St. Rep. 915; Fowler v. Simpson, 79 Tex. 611,15 S. W. 682, 23 Am. St. Rep. 370; Hardy v. Beaty, 84 Tex. 562, 19 S. W. 778, 31 Am. St. .Rep. 80.

. This court, in Ex parte Tinsley, 37 Tex. Cr. R. 527, 40 S. W. 307 (66 Am. St. Rep. 818), recognized the principle in the following language:

“This brings before us the question whether or not the matters and things contained in the application show a void judgment, or one which is merely erroneous; the rule being that, where a court has jurisdiction over the subject-matter, although its judgment may be erroneous, it is not void, and in such case it cannot be reviewed on habeas corpus.”

Ex parte Branch, 36 Tex. Cr. R. 384, 37 S. W. 421, Ex parte Morgan, 57 Tex. Cr. R. 551, 124 S. W. 99, 136 Am. St. Rep. 996, and Ex parte Call, 2 Tex. App. 497, in terms support the rule. Exceptions to this rule will be found generally to embrace cases in which no appeal lies, such as contempt (Ex parte Degener, 30 Tex. App. 566, 17 S. W. 1111), and such as are founded on an unconstitutional law (Ex parte Keeling, 54 Tex. Cr. R. 118, 121 S. W. 605, 130 Am. St. Rep. 884; Ex parte Coleman, 53 Tex. Cr. R. 93, 113 S. W. 17; Ex parte Cain, 56 Tex. Cr. R. 538, 120 S. W. 999; Michie’s Cr. Digest, vol. 3, pp. 436-441).

To determine whether or not the criminal district court oí Travis county had jurisdiction to enter the order extending its term which it did enter on the 21st of July, 1917, Quoted above, the inquiry is: Did the court have the power, that is, did the law give it the power to do so?

“Jurisdiction is simply power.” Tan Fleet on Collateral Attack on Judicial Proceedings, § 58, p. 70.

Another definition is:

“The power to adhere and determine and give the judgment rendered." Ex parte Reed, 100 U. S. 13, 25 L. Ed. 538.

One test of jurisdiction is as follows:

“Had the court * * * the power, under any circumstances, to make the order or perform the act? If this be answered in the affirmative, then its decision upon those circumstances becomes final and conclusive, until reversed by a direct proceeding for that purpose.” Van Fleet on Collateral Attack, p. 83,; Tallman v. McCarty, 11 Wis. 401.
“Where jurisdiction depends on the finding of a particular alleged fact, the exercise of jurisdiction implies the finding of that fact.” Van Fleet on Collateral Attack, § 62: Thornton v. Baker, 15 R. I. 553, 10 Atl. 617.

In Stuart v. Anderson, 70 Tex. 588, 8 S. W. 295, “jurisdiction” is defined as “the power to hear and determine the matter.”

The criminal district court of Travis county was on July 21st a court duly organized and in session. The act of the Legislature vested in it the power to extend its term. It exercised that power, and entered an order upon its minutes stating that the term was extended. It determined that the facts existed which authorized it to make this extension. Its recorded order recites that the necessity therefor existed, and fails by any recital to show or indicate that the necessity designated by the statute did not exist. There is nothing, therefore, in the face of the order, or the record accompanying it, showing that the court was without authority to make it. If a direct attack were made upon it, the facts before the court when it made it might be inquired into and their sufficiency passed upon, and the order, if invalid, set aside. On collateral attack, however, the presumption that the facts authorizing the court to make the order are conclusively presumed to have existed. In other words, on the face of the record the order is without vice, and therefore not void, and, this being true, is not subject to attack in a collateral proceeding by proof aliunde the record impeaching the verity thereof. Ex parte Cox, 53 Tex. Cr. R. 240, 109 S. W. 369.

A judgment rendered when a court is not in session is not a judgment of the court, and is void in any proceeding when it is shown that at the time it was rendered the court was not in session. Doss v. Waggoner, 3 Tex. 515; Ex parte Juneman, 28 Tex. App. 486, 13 S. W. 783; Ex parte Parker, 33 Tex. Cr. R. 111, 21 S. W. 604, 25 S. W. 967. A judgment rendered when a court is not in session, and cannot under the law be in session, it without color of law. One rendered by a court purporting to be in session under an order regular on its face and which the law gave it the power to make is under color of law, and its judgments import verity, except upon direct attack.

Relator makes the point that he is illegally restrained because the indictment is void, in that the law under which it is drawn is in conflict with a subsequent law, and that the latter repealing the law in conflict destroyed the former. No motion has been made, so far as the record discloses, to quash the indictment. There has been no conviction under it, and, if bad for the reasons stated, no cause is disclosed why relief against relator will not be afforded in the trial court. Primarily the jurisdiction of this court is appellate, and, generally speaking, where complete relief against any supposed error will be afforded by appeal, the writ of habeas corpus is not available. Ex parte Barfield, 44 S. W. 1095; Ex parte Boland, 11 Tex. App. 159; and numerous other eases cited in Michie’s Crim. Digest, vol. 3, p. 434. We quote from Ex parte Boland, supra, as follows:

“Is the proceeding under which the relator is shown to be held void, or simply voidable? The doctrine is well settled, in this state at least, that, if the proceeding under which a person is held in custody and restrained of his liberty is merely voidable, he cannot be released on habeas corpus, but must seek his remedy in some other manner. The ordinary mode of seeking redress against a voidable judgment in a criminal proceeding would be by appeal. The writ of ha-beas corpus was never designed to operate as a writ of error, a certiorari, or as an appeal. Perry v. State, 41 Tex. 488; Darrah v. Westerlage, 44 Tex. 388; Ex parte Schwartz, 2 Tex. App. 75; Ex parte Slaren, 3 Tex. App. 662; Ex parte Oliver, 3 Tex. App. 345; Ex parte Mabry, 5 Tex. App. 93; Griffin v. State, 5 Tex. App. 457; Ex parte McGill, 6 Tex. App. 498.”

This rule is well expressed by Judge Davidson in the opinion in Ex parte Japan, 36 Tex. Cr. R. 482, 38 S. W. 43, as follows:

“This is an original application to this court for a writ of habeas corpus. We have heretofore held that: ‘While the Constitution and statutes on this subject give this court jurisdiction to issue writs of habeas corpus, yet we do not believe it was the intention of the lawmakers to constitute this tribunal a nisi prius court for the purpose of issuing and trying, indiscriminately, all cases of habeas corpus. The Constitution and laws of this state authorize us to review such cases on appeal.’ See Ex parte Lambert [37 Tex. Cr. App. 435] 36 S. W. 81. The application could have been made to the judge of the county court of Bell county, if, indeed, the applicant could have resoz-ted to the writ of habeas corpus at all. This is doubtful. See Ex parte Ezell, 40 Tex. 451 [19 Am. Rep. 32]; Ex parte Dickerson, 30 Tex. App. 448 [17 S. W. 1076]; Ex parte Reynolds, 35 Tex. Cr. R. 437 [34 S. W. 120, 60 Am. St. Rep. 54]. It appears on the face of the application that the applicant had been convicted in the city court of Temple of a misdemeanor, and, unless the judgment was absolutely void, he could not obtain relief by writ of habeas corpus. The application for writ of habeas corpus is refused.”

The principles thus stated have been applied to indictments on numerous instances.

Ex parte Webb, 113 S. W. 545; Ex parte Wolf, 55 Tex. Cr. R. 231, 115 S. W. 1192; Ex parte Beverly, 34 Tex. Cr. R. 644, 31 S. W. 645; Ex parte Cox, 53 Tex. Cr. R. 240, 109 S. W. 369; Ex parte Knapp, 57 Tex. Cr. R. 411,123 S. W. 597.

The rule prevailing in this court seems to be that, when an indictment regularly presented attempts to charge the accused with an offense defined in our Code, a discharge on habeas corpus will not be awarded, however irregularly the offense may be charged. Ex parte Cox, 53 Tex. Cr. R. 240, 109 S. W. 369. If, however, the prosecution is without warrant in law, relief against detention under it will be given by habeas corpus. Ex parte Roquemore, 60 Tex. Cr. R. 282, 131 S. W. 1101, 32 L. R. A. (N. S.) 1186. In other words, where the offense with which the prisoner is charged is unknown to the law, he will be discharged on habeas corpus. Republic v. Bynum, Dallam Dig. 376.

The specific question raised grows out of the following facts disclosed by the record and briefs: The indictment against relator charging that, while occupying the office of secretary of state, he received by virtue of his office a named sum of public money belonging to the state, and concludes as follows :

“Which said sum of money, he did then and there unlawfully and fraudulently misapply, and did then and there unlawfully and fraudulently fail to pay the said sum of money into the treasury of the state of Texas at the time prescribed by law, said state treasury then and there being accessible to the said John G. McKay as such officer as aforesaid, and open to business when said money was collected and came in the custody and possession of the said John G. McKay, as aforesaid, and on each and every day thereafter, including the 16th day of May, A. D. 1916 — against the peace and dignity of the state.”

Article 96 of the Penal Code is as follows:

“If any officer of the government, who is by law a receiver or depositary of public money, or any clerk or other person employed about the office of such officer, shall fraudulently take, or misapply, or convert it to his own use, any part of such public money, or secrete the same with intent to take, misapply or convert it to his own use, or shall pay or deliver the same to any person, knowing that he is not entitled to receive it, he shall be punished by confinement in the penitentiary for a term of not less than two nor more than ten years.”

This article was first passed in the year 1858, and has been brought forward in successive revisions, including that of 1911.

Article 97, P. C., which was passed in 1879, and also brought forward in the revision of the statutes of 1911, contains the following:

“Within the term ‘misapplication of public money,’ are included the following acts:

“The use of any public money, in the hands of any officer of the government, for any purpose whatsoever, save that of transmitting or transporting the same to the seat of government, and its payment into the treasury. * ⅜ ⅜
“The deposit, by any officer of the government, of public money in his hands, at any other place than the treasury of the state, when the treasury is accessible and open for business, or permitting the same to remain on deposit at such forbidden •place, after the treasury is open. * * *
“The willful failure of any officer to pay into the state treasury, at the time prescribed by law, whatever funds he may have on hand.
“The special enumeration of cases of misapplication above set forth shall not be understood to exclude any case which, by fair construction of language, comes within the meaning of the imc-ceding language.”

In 1905 article 2434, Vernon’s Sayles’ Civil Statutes, was enacted as a part of the depositary law. This article is as follows:

“If any officer charged with the duty of depositing state funds shall refuse to so deposit the same in a depository authorized to receive the same he shall be liable on his official bond therefor, and for interest on said amount which he has failed to so deposit, at the rate of five per cent, per month, at the suit of the state or county, as the case may be; and this shall be a cause for removal from office.”

Relator asserts the proposition that this enactment of the Legislature resulted in the repeal of articles 96 and 97, P. C., supra, insisting that it is a later inconsistent declaration of the lawmaking power, and the general clause repealing laws in conflict was destructive of the articles of the Code mentioned. Article 2434, supra, will be found in title 44, Vernon’s Sayles’ Civil Statutes, containing the chapter on state depositories. Another article of the chapter, 2431, and which is the article prescribing who shall make deposits, is as follows:

“Any person whose duty it is to pay over to the state of Texas any money belonging thereto, or to any funds, of said state, may pay the same to the state treasury, or he may remit the same to, or deposit the same in any state depository which is then authorized to act as a state depository under this chapter, but, in case the party is a nonresident of the state of Texas, said money so due, or to become due, shall be remitted direct to the state treasurer at Austin.”

Article 3837, Vernon’s Sayles’ Civil Statutes, first enacted in 1907, under the head of “Fees of State Departments,” enumerates the various fees and charges to be made by the department presided over by the secretary of state by which he obtains public money. Article 3838 is upon the same subject, and article 3840 is as follows:

“All fees mentioned in articles 3837 and 3838 shall be paid in advance into the office of Secretary of State, and shall be by him paid into the state treasury monthly.”

It will be noted that this act was first passed two years subsequent to the passage of the depository law in 1905. The depository law was also amended in 1907 (page 183), but the provisions quoted were not changed. Neither article 2431, supra, which designates the persons who are required to pay moneys into the treasury or depository, nor article 2434, mentions the secretary of state. Article 2431 would be broad enough to include him, but, since the same Legislature that amended the depository law enacted article 3840, supra, directing the funds coming into the hands of the -secretary of state to be paid into the state treasury monthly, it would seem that, under the rule that concurrent acts of the Legislature are to be construed together, the' duties of the secretary of state with reference to funds would be those designated in article 3840, supya. This as a proper construction is emphasized by the fact that it is a specific declaration with reference to that particular office. Joliff v. State, 63 Tex. Cr. R. 61, 109 S. W. 176; Webber v. State, 109 S. W. 182; Cain v. State, 20 Tex. 355.

Article 3837 was amended by the Legislature in 1909 (see Acts 31st Leg. p. 266), and the declaration made that moneys coining into the hands of the secretary of state shall be paid into the state treasury in the following language:

“All fees mentioned in this article shall he paid in advance into the office of the Secretary of State, and shall be by him paid into the state treasury monthly.”

Subsequent to the passage of all the acts mentioned above articles 96 and 97, P. C., were brought forward as a part thereof by the act of 1911. The statutes mentioned, it occurs to us, present no irreconcilable conflict or repugnancy, and in the absence of which an implied repeal of the articles of the Penal Code mentioned is not to be declared. Ragazine v. State, 47 Tex. Cr. R. 46, 84 S. W. 832; Ex parte Kimbrell, 47 Tex. Cr. R. 333, S3 S. W. 382; Ex parte Keith, 42 Tex. Cr. R. 283, 83 S. W. 683; Williamson v. State, 32 Tex. Cr. R. 213, 22 S. AV. 686; Snearley v. State, 40 Tex. Cr. R. 507, 52 S. W. 547, 53 S. W. 696; Snead v. State, 55 Tex. Cr. R. 583, 117 S. W. 983. If any repugnancy exists between articles 2431 and 2434 and the acts of the Penal Code mentioned, there is no impediment to a construction which, would give effect to both. This being true, it is incumbent upon the court to so construe. Parshall v. State, 62 Tex. Cr. R. 177, 138 S. W. 759; Aiken v. State, 64 S. W. 57; Ex parte Stubblefield, 1 Tex. App. 757.

It appearing from the act of 1909 (page 266) that there was an express direction to the secretary of state to pay moneys into the treasury monthly, and that the same is declared by article 3840, supra, and that in the revision of the Penal Oode of 1911, articles 96 and 97, attempting to define and prescribe penalties for the misapplication of public money, were brought forward and re-enacted as provisions of the Penal Code, we cannot say that there is no law condemning as an offense the failure of the secretary of state to pay into the state treasury within a given time public moneys that come into his hands by virtue of his office; in other words, we cannot say that the indictment attempts to charge an offense unknown to the law. It is therefore not void so as to authorize us to discharge relator on habeas corpus.

We do not pass upon the question as to whether the indictment contains irregularities. This is a question which the court has consistently refused to consider except upon appeal. Ex parte Webb, 113 S. W. 545; Ex parte Wolf, 55 Tex. Cr. R. 231, 115 S. W. 1192, and other cases cited in Vernon’s Digest of Texas Crim. Reports, p. 441; Ex parte Windsor, 78 S. W. 510. Nor have we considered the interpretation of the act" of the Thirty-Fourth Legislature creating the criminal district court of Travis county.

For the reasons stated, the application is dismissed.
      <S=»Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <®=>Eor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    VILLAREAL v. STATE.
    (No. 4740.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917.
    Dissenting Opinion Dec. . 31, 1917.)
    1. Criminal Law <&wkey;182 — Eoemee Jeopardy — Discharge op Jury and Transfer of Cause.
    Where defendant indicted for homicide entered a plea of not guilty and was placed on trial, and the district attorney, on the ground of surprise by the testimony of the witness, offered to lay the predicate for the introduction of the deceased’s dying declaration, requested a withdrawal of the case from the jury and its continuance on the ground of the absence of a certain witness, and such request was granted, and the jury discharged and- the case continued and transferred to another county, defendant’s plea of jeopardy when the case was called for trial in the latter county, supported by conceded facts, was well taken, and should have been sustained.
    2. Criminal Daw <&wkey;739(4) — Plea of Jeopardy-Question fob Jury.
    Wherever a plea of former jeopardy is interposed, and facts are introduced in its support, the court should submit it to the jury.
    Prendergast, J., dissenting.
    Appeal from District Court, Ward County; Charles Gibbs, Judge.
    Jose Villareal was placed on trial for homicide, his plea of jeopardy was overruled, and he appeals.
    Reversed and cause remanded.
    Ben Palmer, Jno. B. Howard, and Clay Cooke, all of Jecos, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was placed on trial for killing Canuto Ornelas in Reeves county. After impaneling the jury and entering plea of not guilty, the state had advanced far enough in the introduction of its testimony to place on the stand Dr. Cortez, by whom it was expected to lay the predicate for the introduction of the dying declaration of deceased. His testimony was not very satisfactory, and left it in doubt as to a belief of deceased with reference to his hope of recovery. At this point the district attorney claimed he was surprised, and requested the court to withdraw the case from the jury and continue it. This request was in writing, and states the fact that there was an absent witness, who lived about 80 miles from the town of Pecos where the trial was being had. Without the consent and over the protest of appellant, the court granted the request, discharged the jury, and continued the case. The court then, of his own motion, transferred the case to Ward county, which adjoins the county in which the homicide occurred. When the case was called for trial in the latter county appellant filed his plea of jeopardy. Facts were introduced to support it, and there seems to have been no controversy about the facts. This was not submitted to the jury by the court. The facts were conceded, but, not only so, evidence was introduced to prove the plea. All these matters are made to appear properly. The plea was well taken, and should have been sustained. See Vestal v. State, 3 Tex. App. 648; Pizano v. State, 20 Tex. App. 139, 54 Am. Rep. 511; Schulman v. State, 76 Tex. Cr. R. 229, 173 S. W. 1195; Hipple v. State, 191 S. W. 1151, L. R. A. 1917D, 1141. We deem it hardly worth while to discuss this question at length, for the reason it seems to be too well settled for discussion. When a party is placed upon his trial, and a plea of not guilty is entered before the sworn jury, jeopardy attaches. There may be circumstances under which the jury may be discharged without incurring jeopardy. Those circumstances are not here involved. If it were necessary, it could be stated from the record that there were other witnesses by whom the dying declaration could be proved and circumstances under which it was made, and in addition thereto the justice of the peace tools it in writing, to which the deceased was sworn. The only question, however, is the district attorney was not enabled to properly lay the predicate for the introduction of the dying declaration by Dr. Cortez. It might be further stated that the absent witness named by the district attorney, who was something like 80 miles away, could have been brought before the court in a very short time. The rapid means of transportation in these days would not have made it impossible to have had this witness within even 12 hours, and if it was thought necessary a postponement might have been asked, or the case proceeded along other lines, until the witness was brought before the court. The round trip would have been 160 miles, and, under the service of_ automobiles these days, 8 or 10 hours would have been ample time in which to have secured the presence of this absent witness. It might be also stated in this connection that the absent witness was before the court and testified on the trial in Ward county and failed to lay the predicate, as we understand his testimony. These matters are mentioned, but so far as the plea is concerned it was well taken independent of any of those matters. The authorities cited cover this case. The plea was well taken, and, the facts being conceded, should have obtained.

In this connection it is also stated that there was error on the part of the court in not submitting, the plea to the jury. Wherever a plea of this character is interposed,, and the facts are introduced in its support, the court should submit it to the jury.

The judgment is reversed and the cause remanded.

PRENDERGAST, J.

(dissenting).

I do not concur in Judge DAVIDSON’S statement of facts on the question of jeopardy^

After the organization of the jury, arraignment and plea of not guilty by appellant, it seems the district attorney introduced for the state the first witness, Dr. J. B. Cortez. What then occurred is shown in black and white, in writing, without any kind of doubt by the motion of the district attorney and the action and judgment of the court. I will therefore here copy both of these, merely omitting the style and number of the cause, and the designation of the court, etc. The district attorney’s motion is as follows:

“Now comes Tom T. Garrard, Jr., representing the state in the above styled and numbered cause, and states to the court that by an unexpected occurrence since this trial commenced, which no reasonable diligence could have anticipated, he was taken by surprise; that a fair trial of this cause cannot be had ; that the state relied for conviction in this said cause upon the dying declaration made by one Canuto Ornelas, for whose death defendant herein is being tried; said dying declaration was made and taken down in writing, and sworn to before a justice of the peace, J. F. Meier; that the deceased was a Mexican and could not speak the English language; that Dr. J. B. Cortez, a physician of Spanish or French extraction, attended said deceased Canuto Ornelas during his last sickness, and interpreted his said dying declaration to said J. F. Meier; that Dr. Cortez was the only man present when this dying declaration was made who understood deceased’s condition and spoke his language; that the state relied on Dr. Cortez to lay the predicate for the introduction of the said dying declaration of said Canuto Ornelas; that the said Dr. Cortez speaks fairly good English, but at the same time it is rather broken, that the said Dr. Cortez has always told the district attorney and reiterated the statement just before he went on the witness stand that the deceased was conscious of approaching death and had no hopes of recovery when he made said dying declaration ; that the said district attorney read the statute to the witness Dr. Cortez relating to dying declarations, and he positively and affirmatively stated that the deceased was conscious of approaching death and had no hope of recovery, but the said witness Dr. Cortez stated on the witness stand on cross-examination that the deceased had hope of recovery, and that upon the said cross-examination of the said Cortez, the court refused to admit the dying declaration of said deceased; that the state is keenly and greatly surprised at the testimony of the said witness Dr. Cortez; that the deceased made other and later declarations to one Guadalupe Ornelas when he was ■ conscious of approaching death and had no hope of recovery, referring to and renewing the statement which he had previously made in writing, and that the district attorney did not know of these latter statements to the said Guadalupe Ornelas until the witness Dr. Cortez went on the stand; that the said Guadalupe Ornelas lives in Jeff Davis county, Tex., 80 miles straight through the country and across the Davis Mountains from Pecos, Reeves county, Tex., where his trial is being held, and 246 miles by rail and auto; and it will therefore he impossible to get said witness here in time to try this case before the close of this term of court. Wherefore your petitioner prays that the court continue this case until the next term of the court.”

Upon hearing by the court when this motion was made, the court made and entered this order:

“On this,. the 25th day of May, A. D. 1917, after the above styled and numbered cause had been called for trial, both parties announced ready, the defendant pleaded not guilty to the indictment, and the state had introduced part of its testimony, the district attorney, on behalf of the state, presented an application to the court to continue said case, for the reason that he was surprised at the testimony of the witness whom he had just talked to in private, and said witness had told a different story in talking to the district attorney in private than that told on the witness stand; that the witness didn’t seem to understand the matters about which he was called upon to testify, and the court was satisfied that the mistake in the testimony of the witness as given on the stand and as told to the district attorney was an unexpected and unforeseen occurrence, and had arisen since the trial commenced, which no reasonable diligence could have anticipated, and the court is further satisfied that the applicant, the district attorney, was so taken by surprise that a fair trial cannot be had, and it further appearing to the court that the witness desired by the state is not in Reeves county, and cannot be procured for this term _ of court, the court is therefore of the opinion that the said motion of the state is good', it is therefore sustained, and it is ordered and decreed by the court that the jury be discharged, that this cause be continued for the term, and that the'defendant be remanded to the custody of the sheriff.”

These documents need no comment. They show the facts, without any doubt, that the witness Guadalupe Ornelas lived in Jeff Davis county, 80 miles straight through the country and across the Davis Mountains from Pecos, Reeves county, where the case was on trial, and 246 miles by rail and auto, and that it was impossible to get this witness in time to try the case before the term of court closed. It was not merely 80 miles to the witness, but 246 miles by auto or rail. And besides, it was impossible to get him during that term of court. Instead of it being only 80 miles one way or 160 miles for the round trip, it was 246 miles one way or 492 miles the round trip.

On this trial the state proved the necessary undisputed facts to show that said dying declaration was admissible, and the court thereupon on this trial admitted it in evidence.

The decision of my associates herein is flatly in the very, face of the statute, the law, and the facts.

The statute (article 616, O. C. P.) is:

“A continuance may be granted on the application of the state or defendant after the trial has commenced, when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial commenced, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that ' a fair trial cannot be had, or the trial may be postponed to a subsequent day of the term.”

The application of the district attorney and the order of the judge thereon, as shown above, meet this statute in every particular. It could not have been more complete.

In Schindler v. State, 17 Tex. App. 412, under this very statute on the plea of former jeopardy, this court, in a unanimous opinion, held:

“The law vests in the trial judge a discretion, under certain circumstances, to discharge a jury even in a felony case, without the consent of the defendant, and the exercise of such discretion will not be revised by. this court, and will not be held to constitute jeopardy, except when it is made clearly to appear that such discretion has been abused.”

In O’Connor v. State, 28 Tex. App. 291, 13 S. W. 15, on this subject, as one of the essentials of jeopardy, the court held:

“It devolved upon the defendant to prove * * * that without his consent, and without legal cause, the trial court discharged the jury trying him before said jury had rendered a verdict in said cause. Until these essentials of jeopardy were established affirmatively by the defendant, the presumption would prevail that the trial court in discharging the jury acted upon legal cause and did not abuse its discretion. Powell v. State, 17 Texas Ct. App. 345; Schindler v. State, Id. 408; Brady v. State, 21 Texas Ct. App. 659. [1 S. W. 462]; Jones v. State, 13 Texas Ct. App. 1.”

The cases cited by Judge DAVIDSON are not in point. In this case this court and the lower court did not have to rely upon the presumption that the trial court acted “upon legal cause and did not abuse its discretion,” for without any sort of doubt the unquestioned proof showed that the trial judge not only had legal cause to withdraw the cause from the jury and continue it, but that he did not abuse his discretion in doing so.

The state is just as much entitled to a fair trial as an accused is. By the opinion of the majority herein the state has been denied a fair trial, as stated, in the very face of the uncontradicted facts, the statute, and the decisions. . The action of the trial judge in this matter was in every way right, and any other action by him would have been a gross injustice to the state, and in the face of the facts, the statute and the decisions.

I solemnly protest against the. decision of my Associates in this case.
      <g=pPor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes