I concur in the reversal, but am of opinion there is error in holding that the indictment was legally found. There seems to be no question as to the facts bearing upon this matter. The court adjourned by the terms of the statute on the 21st day of April. The bill of indictment was returned on the 25th day of April. The court makes this statement in the bill of exceptions:
"The court overrules the defendant's motion to quash, believing that the law is enunciated in the case of the State v. Mizell,59 Tex. Crim. 226, as reported in 128 S.W. Rep., on pages 125 to 128, inclusive, and upon the issue of the court's authority to extend the term, the court *Page 87 states as a fact, that on the 21st day of April, A.D. 1917, being the seventh week of the March-April term of this court, the grand jury being then in session and having come into open court and stated to the court that they had not finished the business in hand and could not do so that day and requested the court to extend the term of the court to another week in order that they might thereby be enabled to finish the matters then under investigation, the court granting said request by an order duly entered upon the minutes of the District Court in volume S, page 102, by authority vested in the court by Senate Bill No. 375, described in chapter 139 of the general laws of the State of Texas of the Acts of the Thirty-fourth Legislature, . . . same being as follows:
"`The term of the District Court in the Sixty-sixth Judicial District of Texas, comprising the County of Hill, shall be holden in said County of Hill, as follows: Beginning on the first Mondays in January, March, May, July, September and November of each year. Each term of said court may continue in session for a period of seven weeks, or until the business is disposed of, save and except the term beginning annually on the first Monday in July may continue in session for the period of five weeks, or until the disposal of the business.'"
The Act of the Legislature referred to is not fully quoted by the judge in his qualification. Section 1 of the Act is copied by the trial judge. Section 2, however, was not and reads as follows:
"The near approach of the end of the session and the inconvenience resulting from unequal terms of court in said district, creates an emergency and an imperative public necessity requiring the constitutional rule which requires that bills be read on three several days be suspended, and that this Act shall take effect and be in force from and after its passage, and it is so enacted."
It will be observed from reading this Act of the Legislature that the question of the extension of the term of court under article 1726 of the Revised Civil Statutes has no application. This is conceded by the majority opinion. The evidence and the bill excludes the idea that there was a pending trial before the court at the time the order was entered. The only reason for the extension was that the grand jury requested it that they might be enabled to dispose of some matters they had under investigation. Massachusetts has a similar statute to article 1726, supra, which provides that "whenever any criminal case shall be on trial at the end of any term, such term may be continued until such case is finished." The Supreme Court of that State held that it applied only to cases actually on trial at the end of a term, and not to a case which, at some previous time during the term, had been begun and suspended, and not actually in progress of trial at the end of the term. That court said: "Whenever any criminal case shall be on trial at the end of any term, such term may be continued until such case is finished, and the jurors sitting in such case may be presiding justice to serve until the same is concluded." "We are of opinion that the words `on trial' in this statute are to be taken in their literal meaning, and that *Page 88 the case must be actually on trial before the court and jury at the end of the term. That is, if in any stage of the proceedings of a trial actually in progress at the time, between the empaneling of the jury and the rendition of a verdict, the end of the term is reached, and the trial can not be concluded in the ordinary course of business during the term as established by law, in such case an adjournment may be had. The statute does not apply to cases in which at some previous time during the term trials have been begun, and suspended for other reasons, and which at the close of the term are not actually in progress of trial before the jury." What was said by the Supreme Court of Massachusetts is applicable here to article 1726, supra. There are other statutes with reference to the continuation of terms of court, and other means of holding court besides regular terms. The trial courts may call such terms for the disposition of business when deemed necessary. Those have no application here. This was not an attempt to call a special term of the court, but is only extension call. There are statutory provisions with reference to the continuance of courts, towit: statutes creating courts and fixing the terms thereof providing that such courts may continue a certain length of time and until the business is finished. That is an amplification and not a restriction. Under such statutes the term to which such amplification relates may continue without adjourning or order of the court and until the business before the court is disposed of. That rule does not here apply. It will be noticed that by the terms of the present statute the court is limited to seven weeks, or until the disposition of the business. That is evidently a limitation upon the power of the court to extend the term. Its purpose was to authorize the court to hold seven weeks if necessary, and if not, then the court should not continue the seven weeks. This was not intended to grant power of extension, but was a limitation upon the power of extension. If under the statute under consideration the business has been disposed of before the end of the seven weeks, it would be adjourned, and it would be the duty of the judge as soon as the business was disposed of, although the seven weeks had not been economized, to adjourn it. There are obvious reasons why this construction should be placed upon it. One of these is stated in the statute itself, towit: To avoid "the inconvenience resulting from unequal terms of court in said district." There is another reason underlying this limitation; that is, to avoid the expense incident to holding court, the inconvenience to litigants and jurors, court costs, and expenses incident to holding court. So it would seem to be the correct conclusion that the District Court in Hill County, which adjourned by law on the 21st day of April, was not permitted to last or continue longer than that date. The legislative intent was that the court should continue seven weeks if necessary, and if not necessary it was to terminate at or before the end of the seven weeks. It could not continue beyond that date. There is nothing to indicate an "extension." The word "or" carries with it the idea that such was the legislative purpose and this construction is correct. The *Page 89 word "or" is disjunctive and implies the alternative. The statute being in the alternative, it could not last longer than the stipulated seven weeks. "Or" sure means "unless."
Applying this rule to the statute under discussion, it will be found by comparing it with other statutes already mentioned that where the word "and" is used in one class and "or" in the other, it shows an intentional purpose on the part of the Legislature to amplify the length of terms in one, and to limit and restrict duration in the other. And the reason given in the statute itself fixing the term in Hill County shows that it was the purpose of the legislative mind to place a limitation on the length of such terms as specified in the Act. The reason is stated in the bill itself and carries its purpose. If the term could continue till the business was disposed of, the order of extension was not authorized. The idea of "extension" or even legal prolongation is excluded. The trial judge recognized this as correct and held it did not continue until the business was disposed of by entering the extension order. It was only by such order of extension that the jury returned the indictment. The extension was unauthorized. The term closed April 21st. The indictment was returned on the 25th of the month, a date when there was no legal or authorized term of court.
I am of the opinion that the order of the court extending the time, under the facts set out in the bill of exceptions as qualified by the judge, shows clearly that the extension of the term from the 21st of April beyond the end of the seven weeks was void. The court had no authority to extend the term, and that the term could not be lengthened by operation of law until the business was disposed of. When the night of the 21st of April came at 12 o'clock, the seven weeks term ended, and the court by law terminated.
I respectfully dissent and believe the judgment should be reversed and the prosecution dismissed for want of a legal indictment.