We have re-examined the record relating to those matters disposed of in our original opinion which are challenged as erroneous in the motion for rehearing. Being of opinion proper disposition was made of them we do not feel called upon to write further.
Complaint is made because we did not discuss bill of exception number eleven wherein it is claimed that in argument the district attorney referred to the failure of defendant to testify. This bill was not overlooked. The record contains eighty-three bills of exception. Manifestly it was impracticable to discuss each of them. The language complained of was not a direct reference to defendant's failure to testify; neither do we think it is brought within the rule of indirect reference announced in Boone v. State, 90 Tex. Crim. 374,235 S.W. 582, as follows: "The implication must be a necessary one; that is, one that cannot reasonably be applied to the failure of accused to produce other testimony than his own." Many other parties were with accused who were in a position to have knowledge of the matter referred to by the district attorney. The bill does not certify that these parties were unavailable as witnesses.
In his motion for rehearing appellant asserts that the Court of Criminal Appeals of Texas was illegal and without authority to pass upon any matters at the time the opinion in this case was delivered. He bases this contention on an Act of the 39th Legislature, Chapter 95, page 269, which Act authorized the Governor of the State to appoint a Commission to be composed of two attorneys having the same qualifications fixed *Page 330 by law for the Judges of the Court of Criminal Appeals, "which Commission shall be for the aid and assistance of said court in disposing of the business before it; and shall discharge such duties as may be assigned it by said Court." Said Act further provides, "All opinions of said Commission shall be submitted to the Court of Criminal Appeals of Texas and shall receive the approval of said court or a majority of them, before handed down as opinions of said Court, and when so approved and handed down shall have the same weight and legal effect as iforiginally prepared and handed down by said Court of CriminalAppeals of Texas, and not otherwise."
Before said Act was passed the Court of Criminal Appeals was composed of Judges W. C. Morrow, O. S. Lattimore and F. L. Hawkins, the Constitution providing that the Court should be composed of three Judges. The opinion in the instant case was prepared by Judge Lattimore and concurred in by the other two members of the court without participation of the Commissioners. It is appellant's contention that the Commission has become a part of the court in opposition to the Constitution limiting the Court to three members, and therefore that all the Court's acts are void. As we understand it, this contention arises from no wording of the Act creating the Commission, but simply from the manner in which the Court works with and through the Commission. The Court has the Commissioners sit with it when cases are submitted and argument is heard in order that they may have the benefit of argument in all cases, it not being known at such time which cases will be assigned to the Commission; this gives the Court a general knowledge of the issues in cases which are subsequently assigned to the Commission. The Court requires the Commissioners to consult between themselves upon opinions prepared by either of them and if they agree thereon the opinions are submitted to the Court on regular consultation days, the Commissioners being present with the Court at such consultation. In this way the Court has the benefit of the advice of the Commissioners and they likewise have the benefit of the views of the Court upon opinions which may be presented at such consultation. If the opinions prepared by the Commission are approved by the Court they become the opinions of the Court. If the Commissioners themselves do not agree in cases assigned them the case is withdrawn from the Commission and disposed of *Page 331 by the Court itself, or if the Court does not approve an opinion submitted by the Commission it may be referred back to them for modification to meet the views of the Court or it may be withdrawn and one of the members of the Court prepares the opinion. The details of the working of the Commission is for the convenience not only of the Court but of the Commission itself and for the mutual benefit of both.
Appellant has furnished us with no authority to support his position and we must confess our inability to discover any merit therein. Neither of the Commissioners prepared the opinion in the instant case nor participated in any way in the disposition of it.
The validity of the court's judgments based upon opinions prepared by the Commission and approved by the court is not here involved, but as upholding their validity we refer to Henderson v. Beaton, 52 Tex. 29; Stone v. Brown, 54 Tex. 330 [54 Tex. 330]; McKenzie et al. v. Withers et al., 109 Tex. 255 [109 Tex. 255]; People v. Hayne, 83 Cal. 117, 17 Am. St. Rep. 211. From the syllabus in the latter case we quote: "The power vested in a supreme court commission appointed by the court to examine causes submitted to the court, and to report facts or conclusions in the form of opinions to it for its judgment, is not judicial, within the meaning of the constitution; and when the court retains the inherent power not only to decide but to make all binding orders or judgments in such cases, this constitutes the only exercise of judicial power."
The motion for rehearing is overruled.
Overruled.