(dissenting).
When my brethren dispose of this case upon the theory that the overruling of the motion for new trial denied to appellant the right of appeal, I do not know whether they are leading me, or themselves, up a blind alley.
No one is complaining, here, of the overruling of the motion for new trial. Appellant is not complaining of any error committed in the overruling of the motion for new trial because of matters alleged therein.
In so far as this record is concerned, the only purpose served by the motion for new trial was to keep the conviction from becoming final.
The sole and only matter now before this court is whether we were correct in dismissing appellant’s appeal in this case because of the absence of a valid notice of appeal.
*477A motion for new trial has never been required as a condition precedent to the right of appeal.
An appeal may be given in the absence of and without a motion for new trial. Harvey v. State, 150 Texas Cr. Rep. 332, 201 S.W. 2d 42; Daumery v. State, 82 Texas Cr. Rep. 231, 199 S.W. 291; Connell v. State, 89 Texas Cr. Rep. 111, 229 S.W. 502.
The giving of notice of appeal to this court in a criminal case is a very simple matter. All that is required is that the accused or his counsel give notice of appeal in open court at the term of court at which the conviction is had and have it entered in the minutes of the trial court. Arts. 826 and 827, C.C.P.
There is in this record a judgment of the trial court which shows that on the 28th day of February, 1958, appellant’s original motion for new trial was overruled, and that appellant in open court gave notice of appeal to this court, which notice of appeal was at such term “entered of record upon the minutes of [the trial] Court.”
Such order meets all the requirements of law relative to a notice of appeal.
But my brethren say that the trial court had no authority or jurisdiction to allow the notice of appeal and order it entered of record in the minutes of the court, because prior thereto appellant’s motion for new trial had been overruled by operation of law and the term of court had expired. Such holding shows that my brethren permit the motion for new trial to govern the right of appeal, in direct conflict with the prior decisions of this court and the statutes which authorize an appeal to this court.
The trial court was acting within his judicial authority to allow the notice of appeal without reference to the motion for new trial. He was equally authorized to allow the filing of a motion for new trial at any time he deemed advisable.
I call attention to that part of Art. 755, V.A.C.C.P., which says that:
“A Motion for new trial may be filed after the expiration of the term at which said conviction resulted, either during a hew term of court or during vacation, and a Motion for new *478trial may be determined in vacation or at a new term of court, and need not be determined during the term at which filed.”
In view of that language it is inconceivable to me how it can be said that a trial court is precluded from permitting a motion for new trial to be filed or from hearing and determining a motion for new trial when he deems it advisable to do so. It is immaterial whether the motion for new trial, which the trial court heard and overruled in this case, was filed at the term at which the case was tried, or at a subsequent term, or .during vacation, or whether it was one and the same motion originally filed or a different and subsequent motion. The trial court had the judicial power and discretion to hear the motion and, upon overruling it, to accord to the appellant the right of appeal.
Such being true, the construction to be given that part of Art. 755, V.A.C.C.P., which requires that a motion for new trial be determined by the court within twenty days after the filing of the original or amended motion is that such determination within that time is directory and not mandatory. It is only by that construction that any effect whatsoever can be given to the above quoted language.
I call attention to the fact that the legislature has no authority to direct a judge as to when or how he shall reach a conclusion in a case before him or how he shall conduct the trial thereof or as to the conclusion to be reached or any other matter calling for the exercise of judicial discretion. The Constitution prohibits the legislature from encroaching upon the judicial function.
When my brethren conclude that under Art. 755, V.A.C.C.P., it is the mandatory duty of a trial judge to determine a motion for new trial within a specified time, they necessarily declare the statute void as being in violation of the Constitution, Art. 2.
If the legislature can tell a trial judge that he must determine a motion for new trial in a criminal case within a specified time or the motion will be overruled by act of the legislature, then our Constitution is meaningless in saying that our three branches of government shall be separate, one from the other.
I wonder just how much attention the legislature would give to the order of some district judge or judge of this court *479which said to that body that any bills introduced in the legislature must be determined within twenty days after introduction or they will be declared overruled or defeated. In contemplation of such order, the legislature would be expected to say that the length of time a bill is considered by it is a matter coming within the discretion of that body and not happening to come under the jurisdiction or power of the courts.
The courts would no more have the right to tell the legislature how long it should consider a bill before it than would the legislature have the right to tell the courts how long they shall consider a motion for new trial.
Other reasons exist why the appeal in this case should not be dismissed:
The state made no objection whatsoever to the trial court’s consideration of the motion for new trial at the time he overruled it. In so far as this record is concerned, the state did not challenge the right of the trial court to grant the notice of appeal. What right, then, does the state have to challenge the trial court’s action the first time in this court?
If consideration is to be given to the doctrine of waiver— that is, that errors committed in the trial of a criminal case not objected to in the trial court are waived — the state has no such right.
If the state had objected, claiming that the trial court was without authority to consider the motion, the appellant would at least have had the opportunity of correcting the matter or of filing a new motion for new trial, as authorized by the above quoted portion of Art. 755, V.A.C.C.P. But, no, the state registers no objection and seeks to take advantage, here, of its failure to object.
Under the multiplied holdings of this court, an accused similarly situated would be held to have waived any objection.
If that is a good rule for the accused, then why is it not a good rule for the state?
One of the well-established canons of law relative to appeals in criminal cases is that the ruling of the trial court is presumed tó be correct and regular unless the contrary is made to appear. *48013A, Texas Digest, Criminal Law, Keys 1140 and 1142, and authorities there cited.
Under the rule above, the presumption attains that the action of the trial court in this case was in all things regular and authorized. There is an absence of any showing that such is not the case or that the trial court did not intend to accept the notice of appeal.
Under such circumstances it appears that the above rule is for the benefit and use of the state but that when the same rule is sought to be used against the state and for the benefit of the appellant it ceases to be effective. If it is a good rule for the state, it ought to be a good rule for the appellant.
Before one should be denied his right of appeal there ought to exist some definite, positive, and inflexible rule that so decrees. No such rule exists in this case.
In not being allowed a review of his conviction on appeal, this appellant has suffered an injustice, for the evidence upon which this conviction rests wholly fails to establish guilt.
The motion to reinstate the appeal should be granted and this case disposed of upon its merits.
I dissent.
SECOND MOTION TO REINSTATE APPEAL
MORRISON, Presiding Judge.In a forceful second motion to reinstate her appeal, appellant questions the soundness of that portion of our opinion on motion to reinstate the appeal in which we said: “Nothing is found in the opinion of the Court (Dallas Storage and Warehouse Co. et al v. Taylor, 124 Texas 315, 77 S.W. 2d 1031) to suggest that the decision was based in any way upon a distinction between the word ‘shall’ and the word ‘must’.” Upon further study, I do not find myself in agreement with the expression quoted above, but do remain convinced of the soundness of the holding which we originally reached. In the words of the Texas Supreme Court in the case cited, “A statute which like this * * * would give the trial court jurisdiction of indefinite duration over its judgments unless some certain time was fixed within which the motion must be heard and determined * * * . Thus the post*481ponement of hearing and determining the motion would result in intolerable delay.” The very situation there criticized by our Texas Supreme Court is the one which appellant here desires this court to create by granting her motion on the grounds stated therein.
In Mahan v. State, 163 Texas Cr. Rep. 36, 288 S.W. 2d 508, we were first called upon to pass upon this question, and in that case the motion for new trial “remained on file without being acted upon by the court for almost a year”; and we there said: “To consider the matters raised by this motion for new trial * * * would do violence to the command of the legislature that the motion for new trial be presented to the judge * * * and be determined by the judge within 20 days after it is filed.” That decision was handed down in February of 1956, and the legislature of this state has met and adjourned since that time and has not seen fit to alter such holding by further amending Article 755, V.A.C.C.P. The legislature is again in session, and it is within its power to alter this holding as well as that in Mahan if they care to do so.
If we held that the word “shall,” as used in Article 755, supra, is directory only, then the statute would be meaningless and “intolerable delay” would result. This is a question of procedure and, once passed upon, should remain settled. We have in the cases cited held that the motion not acted upon within the 20 days provided for in the statute was overruled by operation of law, and the majority remains convinced of the soundness of such holding.
Appellant’s motion to reinstate the appeal is overruled.