Appellant was convicted of the theft of cattle, and given two years in the penitentiary, and prosecutes this appeal. The only question that requires to be considered by us is as to whether the court before whom appellant was tried was then holding a legal term. The record shows the trial of this cause to have been at a term of the District Court begun and holden on the 24th day of June, 1895, and which adjourned on the 2d day of July, 1895. The trial was in fact had on the 27th day of June, 1895. The acts of the legislature of 1892 (see, Acts 22d Leg., p. 58) authorize a District Court to be holden in Foard County on the twentieth Mondays after the first Mondays in February and August, and to continue in session until the business is disposed of. By reference to the almanac, under this law the District Court of Foard County should have convened on the 24th day of June, 1895. But the laws of the legislature of 1895 (see, Acts 24th Leg., p. 34) authorize a District Court to be holden in the county of Foard on the seventeenth Mondays after the first Mondays in February and August, and to continue in session until the business of said court is disposed of. Said act took effect on its approval, which was April 1, 1895. This last-mentioned act entirely superseded and repealed the Act of 1892, under which the courts in said county were formerly held. While it is true that, if the court had met on the 3d of June, 1895 (which was the seventeenth Monday after the first Monday in February), it could have continued in session, and have been in session on the 27th day of June, 1895, when this case was tried, yet does it follow that, not having met on the day pointed out and authorized by law, and the trial having occurred on a day when said court could be legally in session, said cause was tried during a legal term of said court? We think not. The statute, as before stated, authorizes the holding of a term beginning on the seventeenth Monday after the first Monday in February, and the court must begin its session on said day; and if any contingency happens, that the judge of the court shall fail to attend on said day authorized for the opening and holding of said court, the statute provides a method by which a special judge shall be selected, so that there shall be no failure of the term. See, Rev. Civ. Stat., 1895, Art. 1071. The former statute on this subject was Article 1412, Pasch. Dig., which authorizes, in case the judge did not appear on the day appointed by law for the opening of the term, that the sheriff should adjourn the term from day to day for three days, and that on the morning of the fourth day, the having not appeared, the court should be finally adjourned. The act first quoted on this subject was evidently intended to and did supersede and repeal said last-mentioned act. It *Page 382 does not appear in this case that any court was begun and holden on the day authorized by the Act of 1895, which was then in force. Doubtless the new law on the subject, although it had been in force some months, had not come to the attention of the judge holding this court, and he attempted to convene and hold a court under the former law, which had been repealed. In our opinion, the conviction in this case was had at a term of court not authorized by law. The court, not having convened when authorized, could not convene and hold a term subsequent day. Because the appellant in this case was not convicted at a term of court authorized by law, the judgment is reversed, and the cause remanded.
Reversed and Remanded.
ON FIRST MOTION FOR REHEARING MADE ON PART OF THE STATE.