(dissenting).
In their opinion on second motion for rehearing, my brethren in endeavoring to justify the dismissal of the appeal in this case and thereby denying to this appellant the right to a hearing have but confounded the issue. Such compels me to write further.
The majority of this court now place stress upon the fact that, though the opportunity has been afforded, the legislature has not seen fit to amend or change Art-. 755, Vernon’s Ann.C.C.P., since the opinion of this court in Mahan v. State, supra, holding that the failure of a trial court to determine a motion for new trial within twenty days operates to automatically, and as a matter of law, overrule the motion for new trial.
The failure of the legislature to amend or change Art. 755, Vernon’s Ann.C.C.P., lends support to the contention that such failure evidences the legislature’s intent to transgress upon the judicial function and to take from the judiciary of this state the right of control over its judgments, orders, *861and decrees and to deny the exercise of judicial discretion — all of which renders Art. 755, Vernon’s Ann.C.C.P., void and contrary to the Constitution, which prohibits interference by any of our three branches of government with the functions of the others.
Its failure to rebel against the. construction this court placed upon Art. 755, Vernon’s Ann.C.C.P., shows that the legislature intended that such article have the effect given it by this court.
The failure of the legislature to repeal, change, or modify an unconstitutional statute does not give validity to a void statute.
There is this further defect in the construction given'to Art. 755, Vernon’s Ann. C.C.P., by my brethren:
By what authority is the right given to this court to construe what my brethren say is the unequivocal mandate of the legislature that motions for new trial must be determined within twenty days to mean that it is the overruling of the motion that is thereby made mandatory? That is exactly what my brethren hold. Would it not be just as reasonable a construction to say that the motion was to be granted because of the failure of the trial court to determine it within twenty days as it is to say that the motion was to be overruled?
The statute, Art. 755, Vernon’s Ann.C. C.P., provides merely that the motion shall be determined in twenty days'. Yet, by their decision, my brethren enter into the field of legislation and rewrite the statute so that the word “determination” really means “overruled.”
As so rewritten by this court, then, Art. 755, Vernon’s Ann.C.C.P., provides nothing more or less than that a motion for new trial in a criminal case is automatically overruled by the act of the legislature within twenty days after the filing of the motion unless the trial court grants or overrules the motion prior to the expiration of the twenty-day period. .
The act of the legislature, Art. 755, Vernon’s Ann.C.C.P., is susceptible of no such construction. The legislature has not said it was susceptible of that construction. There is just as much reason to say that the word “determined,” as used in the statute, means “granted” as there is that it means “overruled.” Is there any more reason to penalize the accused because of the failure of the trial court to act on the motion within twenty days by automatically overruling it than there would be, for the same reason, to penalize the state by automatically granting the motion? I can see no difference and submit that there is none. Then why penalize either party to the lawsuit ?
What Art. 755, Vernon’s Ann.C.C.P., means and the construction that should be given thereto is that such article is a suggestion from the legislature to the courts of this state that it believes it to be feasible and advisable that motions for new trial in criminal cases be decided and a conclusion reached thereon within twenty days, but that in no event is it the purpose or intent of the legislature to take from the courts the exercise of their judicial discretion and control over their judgments, orders, and decrees.
Such construction gives validity to Art. 755, Vernon’s Ann.C.C.P., and preserves the constitutional inhibition against interference by one branch of government with the functions of another branch of government.
I insist that the appellant, here, was entitled to have her appeal determined by this court.