Lemons v. State

On a former day of this term of the court the judgment of the lower court in this case was affirmed. Appellant has filed a motion for rehearing in which it is insisted that this case should be reversed and dismissed because the indictment against the defendant herein was returned at a term of court not authorized by law and by a grand jury which had no legal existence, for the reason that the Act of 1909, if it is constitutional, was clearly intended to repeal the Act of 1905, except as to the spring terms of the District Court held during the year 1909, and the indictment in this case having been returned at the regular July term of the District Court and which was clearly in conflict with the Act of 1909, and it therefore had no legal existence and was held without authority of law. The Act of 1905, which created the 64th Judicial District and fixed the terms of court therein, and which remained in force until the taking effect of the Act of 1909, provided that there should be held terms of court in Swisher County on the third Mondays after the first Mondays in January and July and may continue in session three weeks. The Act of 1909 took effect August 1, 1909, by its terms. The third Monday after the first Monday of July, 1909, was the 26th day of July. The indictment herein was returned on July 27th. The meeting *Page 312 of the court on July 26th was in accordance with and authorized by the law in force at that time and which remained in force at least until August 1st, following the date of the taking effect of the Act of 1909. The exhibits attached to appellant's motion for rehearing show that the court in Swisher County which met on July 26th and at which this indictment was returned adjourned on July 30th. The Act of 1909 does not say that only the spring terms of court shall be held under the Act of 1905, but merely that "this Act shall not conflict with any of the spring terms of court now being held under existing laws." The Act of 1905 was in force and remained in force until the taking effect of the repealing clause of the Act of 1909, which was on August 1. This Act had no effect until that date, and the authority of the Swisher County District Court to be in session on July 27th, was exactly what it would have been had the Act of 1909 never passed. Therefore the term of court having been organized under the then existing law it can not be said that the indictment returned at that term of the court would be invalid.

Appellant further contends in his motion for rehearing, that if the term of the court beginning July 26th at which the indictment was returned was a proper term, then same, being a regular term of said court, the county having already in January had one regular term of court, the term beginning August 30th under the Act of 1909, was void under the Constitution, because: "The Constitution only authorizes two regular terms and they had been had if the July term was a regular and legal one." We hold that section 7, article 5, of the Constitution, is not subject to this construction. It does not forbid more than two regular terms of court. It only requires as many as two regular terms in each year, the language of the Constitution being: "He (the district judge) shall hold the regular terms of his court at the county seat of each county in his district at least twice in each year." We therefore hold that any county may have more than two terms of the District Court, if provided by law, and that this ground of the motion is without merit.

Appellant contends that if this court should hold that the indictment was returned at a regular term of court authorized by law and for that reason the indictment should be held valid, then the judgment rendered against him is void for the reason that the term of court at which the same was rendered, being a regular term and purporting to be held in pursuance of the Act of the Thirty-first Legislature, was a term not authorized by a valid and constitutional law for the reason that under said Act it was impossible, taking it together with the Act of 1905, for Hale County, one of the counties of said district, to have two regular terms of court during the year 1909. The Act of 1905 in force prior to the taking effect of the Act of 1909, provided that the District Court should be held in Hale County on the *Page 313 13th Monday after the first Monday in January and July and might continue in session for four weeks. Under the Act of 1905, Hale County had held one term of court which was in April of that year. Her second term of court, under the Act of 1905, would have made the beginning of the fall term of court in Hale County commence in October. The Act of 1909 provides for the holding of court in Hale County on the 18th Mondays after the first Mondays in February and August of each year and may continue until the business is disposed of. This would make the commencement of court in Hale County be on December 6th instead of October, as provided under the law of 1905. All of the terms of court in this district were limited in duration, except Hale County, and there it was provided the court might remain in session until the business was disposed of or until the commencement of the circuit on the first Monday in February, in Floyd County. The contention is here made that the language of the Constitution which provides that the district judge shall hold court in each county at least twice in each year, means two full and complete terms of court beginning and ending within each calendar year. We do not think this contention is sound. The language of the Act specially provides that it shall not interfere with the spring terms of the court. It is true this court has held in a number of cases that where an Act of the Legislature changes the time of holding courts in any judicial district, and if such change shall so affect the holding of the terms of court as to deprive any one county in said district of its two constitutional terms of court within the year, said Act shall be postponed and shall not go into effect until such time as will not deprive one county of its constitutional terms of court, and that it was not so intended that said Act should take effect so as to leave such a result. See Ex parte Thompson, 123 S.W. Rep., 612, and Nobles v. State, 123 S.W. Rep., 126. The same question was before our Supreme Court in the case of Bowden v. Crawford, 125 S.W. Rep., 5, and that court, speaking through Chief Justice Gaines, stated: "This is an important question, and one that is fraught with trouble. We therefore deem it best to acquiesce in the ruling of the Court of Criminal Appeals upon the point, and therefore answer the first question: That insofar as the Act in question failed to provide Borden County with two terms of the District Court for the year 1909, it is without effect, and leaves the Act of 1905 in force for the first circuit of the courts." And further held that the Act of 1909 was inoperative for the spring and summer terms of the court. We are not willing to extend the doctrine any further than was announced in the Noble and Thompson cases,supra. The law is not unconstitutional. The decisions simply go to the extent that it was not intended that the law should have such construction as that a county in a given district would be deprived of its two constitutional terms of court each *Page 314 year and that the Act would become operative, when this condition of things would not arise. This law had to go into effect at some time. The Legislature saw the difficulty and provided that it should not go into effect during the spring terms of the court and by its language postponed the going into effect of said law. That some inconvenience might arise in the change of any law must be expected and simply because a term of court may be postponed by the operation of the law whereby one of the two terms of court for the year may by some contingency run into the second year, would not be sufficient reason to hold the Act of the Legislature without effect. It may be that the meeting of the term of the court in Hale County in December, 1909, may have disposed of the business during the year 1909, and simply held over to meet contingencies that might arise, until the beginning of the February term in Floyd County, but that would be no reason for this court to hold the Act invalid. The Act was not invalid under the law, but simply for convenience and to meet the requirements of the Constitution, the courts have wisely held that the going into effect of the Act should be postponed until such time as that the county would not be deprived of its two terms of court during the year. We therefore hold that this contention of appellant is without merit and that appellant was tried at a legal term of the court and under the law, valid at the time of his trial. As has been wisely said: "Until it is shown to be plainly and manifestly in conflict with the Constitution the presumption of its validity will hold good; all doubts will be resolved in its favor. Every presumption is in favor of the validity of legislative acts." Sutherland's Statutory Construction 2d ed., sec. 497; see also the case of Read v. Levy,30 Tex. 738.

The other questions raised in the motion for rehearing were all reviewed in the original opinion, and believing that they were correctly decided and that the motion is without merit, the same is in all things overruled.

Overruled.