*1 75 v. The Alexander 1918.] and force a dismissal the prosecution ownership, ultimately sustained, anxious we specially reinstatement could he that no facts, however, believing and desire the upon an affirmance. We the of this grant request the court will hope we the facts sufficient amply the of conviction. judgment motion and affirm affirmed, not reversed. This case should v. The Alexander State Dave May 1918. No. 4704. Decided 28, 1918. Rehearing June denied of Court. Option—Indictment—Term —Local 1. Legislature provided court the the act Where of, weeks, the business is this period of seven or until session for the county the Court of authorized the term of District extension returned indictment prosecution beyond the end of the seven dissenting. Davidson, Judge, Presiding during such is valid. therein extension Intoxicating Liquors—Date —Same—Indictment—Occupation—Selling 2. of Offense. no in that was defective indictment Where contended that defendant alleged to have he is or after alleged to have been made on sales are option ter- local selling intoxicating liquors in engaged been in the business untenable, defendant allegation ritory, was sufficient this specific were occupation, least sales two engaged that at in said business admitting testimony there- years, there was error in within no made three under. of Proof. —Same—Agency—Charge of Court—Evidence—Burden 3. intoxicating liquors selling Where, pursuing upon trial reaped profit no territory, that he to show option local the-defendant offered as an witness whisky State’s transaction, procured from the accommodation, in evidence and admitted should have- Besides, charge of the charge thereon. a proper should have submitted upon de- doubt proof reasonable burden placing court was error occupa- pursuing constituted fendant, and what to the sales with reference dissenting. Judge, Prendergast, tion. —Same—Evidence—Exhibiting Whisky Bottles. liquors selling intoxicating occupation of Where, pursuing there was an trial of upon containing packages agreement that territory, option local witness, prosecuting to the liquor defendant were delivered by one sixteen attorney one county to exhibit permitted the not have should necessary to jury, presence whisky bottles of suspended sen- plea for his prejudiced defendant proven fact to be dissenting. Judge, Prendergast, tence. tne before below Hill. Tried Court the District
Appeal Porter. Horton B. Hon. in- selling occupation conviction of pursuing from a Appeal years two option territory; penalty, in local toxicating liquors penitentiary. the case. states opinion Reports.
76 Texas Criminal [June, for appellant. Morrow, Collins, Morrow & insufficient On returned because same was not at term the court: legal indictments 111; Parker, id., 12; Parker Texas Crim. Ex Rep., parte *2 Juneman, State, id., 373; Ex 28 Texas App.; Wilson v. 37 Crim. parte 356, 437; 169 S. W. 486; State, Rep., Texas Crim. Rep., Brown v. 74 12 Texas, 185; State, 52 Garza v. Texas Crim. Smith, v.Co. Railway 261. App., State, of
On sixteen bottles v. whisky: King of question introducing State, id., 645; 59 146; La Fleur v. v. Gillespie 55 Texas Crim. Rep., State, 190 W. 146. reported, Rep., S. recently State, of instructions: McCampbell
On of refusal v. special question State, 981; 172 Warner v. 345; S. Burns v. S. W. Rep., 134 W. Rep., 209, S. W. State, Rep., 167 1109. Rep., Texas Crim. State, Texas of v. Crim. proof: Coy Rep.,
On of burden question 85, 221; Rep., Fisher 197 S. E. 171 S. W. Rep., 189. Hendricks, General, for the
E. B. Assistant State. Attorney Special Judge. GAINES, E. C. was convicted Appellant of in- District Court of Hill selling County pursuing in local toxicating liquor option territory.
The most serious the case on arises a motion quash indictment on the bill that the after the term of ground returned court had expired operation of law. The indictment was returned 25, April 1917. The Act the Thirty-fourth Legislature, page hereafter referred to as Act of reads as follows:
“The terms of District Court Judicial Sixty-sixth District Texas, Hill, shall holden comprising county said follows: the first Beginning Mondays January, March, May, July, September and November each each term of year; said court may continue session for a of seven or until the period busi- of, ness is save term except beginning annually first in session for a of five Monday July period may weeks, or until the disposal the business." The March term of said week on completed court the seventh April 21st. The grand of the District auxiliary body Court and bill of indictment P., must into open be returned court. C. C. art. Unless the court was 25th, lawful authority the bill was not presented into open body any or having legal existence as a grand jury. There are several statutes providing special holding terms under extending regular certain conditions, all these have been considered, carefully this was in term, and, no sense a unless statute above special quoted gives such other there is but one statute which regular tenn of court he extended. That is article 1726 of the Revised- Statutes, Civil that: “Whenever is. District provides any Court case, in the midst when time any of the trial for the -expiration v. The Alexander 1918.J term, court, law, arrive, said as fixed shall the judge pre- ifmay, shall have the he 'deems it power
siding expedient, extend until the conclusion of term of said court such trial. In pending term case, extension of such shall be shown in the minutes In case of the court before signed. extension of the term of court herein no term of court fail shall provided, because thereof county, but the therein be opened held, law, as now when the provided by district fails to appear at the of a term of court.” opening 21st,
On April' last week, seventh on the ground the business could not be of on that day, the court entered an order in minutes the term extending another week or until 28th. evening, April Saturday the term could not Clearly have, because, 1726; extended under article under that statute, an extension can be had when the court “is in the midst of the' trial of any cause when the time for court, expiration of term said *3 law, as fixed shall by arrive.” It affirmatively appears that the not “in trial cause,” midst of the of any when the seven weeks expired. The conditions an authorizing extension not in exist- being ence, there was no to extend under that statute. authority Common- McClellan, Mass., wealth v. 31. This much has been written as to statute, said because counsel for appellant, that the assuming extension statute, under that attempted have well that no such argued author- could ity have been derived from However, that source. it does not appear that its court based authority said statute. It appears from the order on the minutes and from the remarks of the court the motion to overruling in the record quash, defendant’s preserved bill of exceptions, that on 21st came grand info open court and informed that their business was unfinished their an upon order was then entered the term request extending week, another which this indictment was returned during and other extension, therefore, transacted. business have clearly appears been based on the of the Act of 1915. authority It is true that minutes, extension was evidenced an order entered as required 1726, whereas an not have article order 1915, in the one the the Act because of the court could authority order, while it appear from such other would from the appear itself, if law existed. But entry unnecessary of an order not without destroy power would the order or existing bring extension under another an different statute order based on requiring grounds.
Was the extension authorized ? by the Act 1915 The language Act “Each of said that is: term may continue weeks, or of.” until the business Is this lan- disposed the effect of term weeks, to seven it events, to limit at all authorize guage of, sooner if the adjourn business should or does be disposed ? authorize to extend if necessary weeks longer than seven Reports. [June, Criminal Texas have argument and oral pre- able brief in a very appellant Counsel for term does an alternative "or” word the view sented used, is a term of but had been if the "and” word the same as mean reasonsr for two more plausible view is limitation. This rendered has Legislature instances, where few because, except very First, "may been: usual has expression extend terms granted authority business is until in session (-) prescribing second, page the Act of and, because of”; Act, to the present in Hill prior District Court as the the same days begin present terms should provided that shall continue in session until Act, "Each term of said court and that: term, until next or succeeding the beginning before Saturday It language of.” will observed Act and that under the former is the same each under construction before the term "continue until the Saturday beginning Act one are, they these arguments term.” Persuasive as of the next succeeding "or” disjunctive conjunction The term are not conclusive. the'Century defined "and” conjunctive conjunction, is a In sense of the strict as "a colorless participle.” precise Dictionary the one is and the other an alter- definition, disjoins conjoins; the one connective; one carries alternative other is a native, and the that, both; can-not do this or you do meaning, you that. is the or other, do this and Such restrictive both you may however, terms; are of these not words of tech- precise they meaning receive, law, the are nical meaning they meaning In these are themselves terms; they common parlance. empty carry mere "colorless no inherent meaning; participles” from what comes A their force before after. meaning derive of such as has been them is of little given construction judicial review *4 Phrases, Words volume present question. value pages 50.11,inclusive, show a will collated number of decisions larger 5006 to will these terms than be found elsewhere. But all these- construing this: their to that these derive force and only meaning amount connection of the the context and matter which are used. it not reason a will do to to conclusion from the Ordinarily, restricted word, definition of an isolated and this is a term, true of especially is as variant as the connections which it meaning may-be It also be said that a careful search of the employed. decisions may reveal has failed to case this other State any where language construction We substantially this has under review. involving passed then, left, determine the to this from the whole meaning phrase it of the matter in which is used and from the use similar context the same phrases conditions construction. involving of the Act is that: "Each term of said court may language of seven weeks.” If continue in session we eliminate the period of,” "or until the business is there is no disposed following phrase: to adjourn still have before the that the court would n v. The State. Alexander 79 1918-1 if the business should sooner he It end of seven weeks of. n follows, “or until then, business is of” that phrase: that the court or means continue than surplusage may longer is either business, because seven weeks if without the dispose had undoubted addition of this continue phrase power sooner. It is the of the courts to adjourn duty weeks or presume intended all used it that the with a Legislature charge language by true when the an purpose. This is is meaning especially language adopted or hears been chosen phrase evidence with care or having in the same phrase connection or others long frequent usage But a similar of construction. reason of this involving principle that, force counsel for it is very principle urged great appellant in the Act of was used that there was language prior Act, no interval between the terms of court under that one and that term could not another. It is true that the canons of the overlap church have so far become of the common law that part Sunday dies non that no so he transacted on juridicus, judicial may statute, that day, unless certain ministerial duties.. except authorized Texas, Hanover Fire Insurance Co. v. & 89 35; Shrader Rogers, Harper State, 43; v. 43 Texas 37 Crim. It would also seem Rep., Cyc., weight that, authority supports proposition except statute, cases one, of which this is not provided there may be two regular terms of same court the same district at the same time where Richardson, there is one regular v. 191 judge. Cory 568; State, S W. Rep., 125; v. McVay S. W. Rep., Tippy Neb., 368; Kan., in re 214. The Milligan, Legislature pre sumed to have had these in mind. principles However, it is not so clear that under interval, the Act of 1905 there was no be except Sunday, tween the terms. The of that Act was: “and shall language in session until'the before the Saturday of the next beginning succeed term.” The ordinary meaning would language imply term would end at before, ordinary midnight so that Friday intervene However, would between the terms. Saturday the decision of is not deemed essential to the point involved, here proposition its probable interpretation have been in the mind of the Legislature is alluded to as on the shedding light intent and meaning of the Act of 1905. The have Legislature may intended that the terms should end at have midnight Friday regarded Saturday sufficient for those small unfinished matters “lag superfluous on term when crowded off stage” expiring by heavy trials. As- whether such the effect of language ending matter is a close night,, Friday reasoning, light the con decisions, it can not he said such was not the intent of the flicting *5 correct and whether the of interpretation their Legislatúre, language or not is immaterial here, effect to that intent would because if give an additional it would be reason was the intent it legislative why should “or until business is disposed of” have intended the words should Bepobts. [June, 8-1 Texas Cbimiital Saturday. to have meant that if could extend include in Act Therefore, assumed that this language it can be extension, an but if. this could been intended to authorize not have assumed, still, thus limit the same necessarily be it would not could instance, if, from that in" Act of because apart language extension, an it is such as to allow effect of ordinary language the immediate opening in reason of that instance impossible term, general meaning still have- same would language next would have in that instance its effect application, only particular its been in abeyance impossibility "application, reason of “or” the term “and” instead of in such if had used case the Legislature it could not have more. meant
In of the interpretation language the absence of direct any judicial construction, in the same substantially the use these phrases seem to afford undisputed connection where their meaning of the legis- intent. A careful review guide best to legislative Courts, past present, the District lation terms of prescribing time, the fixed for a definite pre- will when the term not show of,” occa- disposed is: “and until the business is with vailing phrase of.” How- disposed sional úse of the "or until the business is phrase: ever, of these there is in the context of the nothing usage phrases indicate are not and used in they precisely convertible phrases sense. In the ordinance written and Constitution itself, the and care as the Constitution adopted the same ability In most instances judicial districts. State divided into twenty-six session-weeks”; four- in "and continue may was: language of”; until the business is "and continue- teen: may “and and, County of Marion: only, one of.” business of the term is or until session eight was the at the end of the circuit and Marion was then more another. there is followed So term not immediately than in that instance to extend suppose grant reason to curtail the term. well But presumed Constitution language than that legislation, been chosen with more care instrument similar language prescribing while not find we do courts, there the same form phrase- we do find precisely the terms office, no reason why and there is sound ology prescribing In other. not involve construction of one should construction General, Attorney Comptroller, office of the the terms of prescribing constable, the Constitution pro- peace, county justice judge, until for two "and his suc- .years each shall hold his office vides that whereas, the term be elected and qualified”; prescribing cessor shall hold his office that: “he shall for the Governor provides of office installed”; be duly or until his successor shall of two years, for the term "shall hold Supreme Court case of judges until their successors elected cm offices for six their years, *6 v. Tiie Alexandeh 1918.] of the same section it is that and at the close provided qualified”; "shall continue adopted the Constitution is in office the time judges at terms of office under the their present in office until expiration It and are elected Constitution, qualified.” until their successors and of this law that in the organic is thus made plain language used convertible "or” are as terms, chosen in measured "and” and the term of terms, that the same article limits for it will be observed is elected and "or” until his successor to six supreme years ex- continue to the those then office shall holding and that qualified, elected and until their successors are terms "and” their piration is until his successor elected hold over That each would qualified. of argument. now beyond pale ais self-evident proposition qualified of some of the officers above that in the case It will also be observed is: "and until their successors of the Constitution named the language whereas, in the case of others the term "or” elected and are qualified,” all mean the same is contro- used, thing beyond that and yet doubt oh this it is settled But, if could be versy. point there section-17, itself in article wherein it is provided: Constitution this shall continue to the duties of perform State "All officers within shall be elected and How qualified.” until their successors offices their is, that the "he shall clear, and it hold his language: perfectly if it is six as the case or until years may be) term of two years (or officefor arid means that such officers shall is elected hold qualified,” successor his terms if it is necessary, of their clear expiration equally over after session for a of seven language: "may period that of” means that the until court may weeks, or weeks, if the seven busi- beyond dispose over hold statute, legislative interpretation, illustrating ness. Again terms of the uses the supreme judges term "and” in prescribing elected, whereas, above, are as set out the Con- successors until their course, in "or.” Of case of conflict in their uses the term stitution the Legislature Constitution would prevail, pre- meaning matter, Constitution on the same meant the same to have sumed interpretation this form of amounts tó legislative and it Therefore, as "and.” both the thing "or” means the phraseology construction leads language the use of example history continue in "may phrase conclusion to the inexorably of,” until the business is of seven for the period Hill District' Court of County beyond the extension authorized and a bill of indictment returned during the seven weeks the end of reason. be invalid this extension not that "on or about the 25th April, indictment alleged indictment, to the Dave 1917, and anterior presentment D.A. Texas, Hill did then and there Alexander, County, engage and business occupation selling intoxicating liquor,” pursue the numerous sales. Ho sales are specific dates of alleged then sets out the 84 Crim.-6 Yol. Bepokts. [June, Criminal 84 Texas in- contends The appellant 25th. April made on
to have been made on have been alleged are that no sales is defective dictment Sales could business. to be engaged he is alleged the day or after returned bill was 25th, because after alleged the elements reason why no apparent there is day, he was engaged is that allegation well pleaded offense are not when three years within sales least two specific at the business *7 one 25th and perhaps on the of a sale evidence There was specified. no sales that subsequent is true and while it April, on the 26th of inadmissible, ordinarily and charged of the offense part sales anterior numerous to witnesses of the same testimony of the view was testimony conditions, it is not believed same general under the the defendant. to or prejudicial material the State to one for the was witness State that the principal shows testimony The and his avo- have been wide travels detectives whose amateur of those his head- "sent out by that he He testified diversified. cations Hill County.” attorney of county to the to report at Dallas quarters associated, a-character similar keep, for his have thereafter He to seems of appel- into the confidence themselves himself. They ingratiated to Hillsboro, in- and in a barbership boot-black lant, was a negro who West on divers them from the town of for whisky duced him to procure indictment, for which they gave as alleged occasions sundry Appel- of the whisky after the delivery him either before or money it, the money whisky taking lant did not deny procuring to elicit behalf his counsel in his own sought but when he was testifying or he have interest in effect that did not from him to the testimony an accom- same as only from the but- whisky got profit reap any to by This was objected witnesses. testimony modation to the State’s it was and excluded "hearsay”-- the ground on the State advised; we are not not on the court, reason certainly ground for what This was and direct to hearsay. testimony going that it was original the offense. It was on the practically only question gist wa,s or as an a mere obtaining whisky If agent facts. appellant State, v. accommodation, a sale. Campbell it would not constitute 572; State, 20; 48 Texas Crim. Evans Rep., Driver v. Rep., Texas Crim. State, State, 549; Robinson v. 81 Texas 55 Texas Crim. Rep., Crim. in the 448. The of the offense is that engaging Rep., gist The of the liquor. weight probable setting intoxicating not for the court. The have jury may pre truth of the testimony rather an to have believed a boot-black than amateur de ferred negro an in the encourages tective who participates ignorant negro commission of offense order furnish thereof evidence admitted, for a The should have reward. and its. testimony exclusion the court is error highly prejudicial appellant. Appel lant the failure of complains also charge this theory,, but it that a appears requested charge covering this issue substantially was given and this would cure the in the main omission charge. Ap~ 1918.] THE V. STATE. ALEXANDER court: in the of the charge of the following paragraph complains pellant that defendant did engage find from testimony “If you business, in the indictment and liquor alleged intoxicating of selling next within three years sales of intoxicating liquor not make two did have a testimony or if -April, you before the 25th day then, time, two sales said you he made within reasonable doubt that erroneous in two This charge will find the defendant not guilty.” the burden of respects.. appellant applies It tends to put proof to the issue of two sales. of reasonable doubt principle have made in the business and must engaged law is that he must three is entitled to the benefit of at least two sales within He years. had a reasonable' doubt
reasonable doubt on both issues. If jury be as their to whether he in the business it would much engaged sales, two as if had such doubt the issue duty acquit they Mizell v. case of such doubt on either issue should acquit. 125; 59 Texas Crim. 128 S. W. Robinson v. Rep., Rep., Texas 196 W. State, 81 Crim. S. Rep., Rep., 186..
In the of the trial the State was about to exhibit the progress whisky presence purpose refreshing memory witness, to- prosecuting identify packages purchased *8 it was prove admitted “Where whisky. Appellant thereupon that: is and transactions were alleged proved had the prosecuting witnesses where the defendant delivered to said witnesses that packages the same were and that said the identical whisky packages were pack- delivered defendant to' said and by then ages witness prosecuting possession of the county attorney.” this admission in. Notwithstanding open court, the court to exhibit one permitted county attorney one sixteen in bottles The nature whisky presence the jury.- employment this witness the short time that had elapsed since the events on he testified were such that this was testimony to refresh clearly necessary his This admission estab- memory. other material lished and admissible fact every that could have been the exhibition was, established of said Its exhibition there- whisky. fore, not fact any But proven. psychological such matters under all effect of the circumstances must have been highly prejudicial to This is appellant. intensified the fact that appel- lant a for presented suspended plea sentence and the evidence was such that this would have been This is a ordinarily granted. right ap- to be pellant in guarded as involved his trial. The right judgment is reversed cause remanded.
Reversed and remanded. Judge.—I
DAVIDSON, Presiding to reversal but do not con- agree cur on first in proposition opinion. n
MORROW, not sitting. Judge, Eepoets. {June, 84 Texas Criminal Judge ST, PRENDERGA in (concurring part dissenting part).—When the I original opinion handed down did not write views. I now my do so.
I concur with Special Judge Gaines extension holding term of at indictment herein court which the preferred legal and valid. of 1905, 37,
The Act Hill district, page creating separate fixed the term etc., of court to be held on the first Mondays January, of each year, “Each prescribed: term of said court shall continue in session until the next Saturday before succeed- beginning term, or until all of.” business Doubtless the disposed judge continue,” court and concluded, said, the officers the Act “shall etc., that it was court mandatory to continue ses- required stated, sion as it had no at all to business transact notwithstanding some time before term; and that expiration the last words “or until quoted, of,” all the business court disposed gave power beyond fixed, to extend term if it had business on neces- hand to be of. sary The Act of that of page amending 1905, fixed the term of etc., court the first Mondays January, each Then it said: “Each term of continue in year. said court may period until the business of.” court Thereby expressly even before the authorizing adjourn seven weeks expired, and removed the feature thereby peremptory continue,” act previous court—“shall- But at requiring etc. the same time giving to continue power even than the seven if the longer weeks undisposed it. required I think there can be no of the intent of the Legis- matter lature and that the extension of this instance was term of unquestionably legal court during the time of extension.
I concur with Gaines Judge indictment when attacked holding stated, in another instance as valid. concur,
I do not from Judge but dissent Gaines’ wherein opinion *9 he comments what was unfavorably upon says the State’s principal witness, “associated, as an “amateur detective” and he keep, his character similar himself.” I think his a criticism of these witnesses is in no called for or way that occurred in testimony anything the trial.
Neither I concur in that do of Gaines’ portion Judge opinion wherein he, at least lauds the by implication, appellant “The language: preferred to believe a jury may negro boot-black rather than an amateur detective encourages who and participates with an ignorant negro the commission an offense order that he furnish for a evidence thereof reward.” I commend and approve the employ- ment of detectives them in the officers to aid out the vio- ferreting a lations of our laws. I them as liquor regard and instead of necessity them, I them. denouncing commend y.
1918.j The State. Alexander that the whole one be led think opinion Gaines’ Judge From an- “amateur detective” and of one of the was that State testimony Carroll, the case. Mr. who such is not But other “character similar.” detective,” fol- “amateur as an designated the one reproachfully business, that a detective and praiseworthy a lowing legitimate honorable employment Before followed that he had ferret crime. out and distinct separate He testified no at time. dishonorable one on each these from intoxicating liquor appellant, purchases 9th, 4th, 20th, 2nd, March 21st 28th, 1917: February dates in Hill Franks, sheriff of tes- County, deputy 25th. the good Mr. April from make the purchases liquor appel- he saw Mr. Carroll tified that a of circumstances 5th, and tells such state on March 2nd and lant sale on March he saw the 9th. to show that also witness referred to as “a character sim- Mr. who must Currey, Carroll, he and distinct separate made purchases ilar to” testified 4th, from on March 5th 7th. appellant of intoxicating liquors witness, an escapes Mr. who Sealey, being designated Another as. similar,” or “a character testified that he bought detective” “amateur 21st, on March 21st April from appellant 20th, intoxicating liquor and 25th.
Earl odious testified he saw Pryor, escaped designation, who on March from 23rd. buy appellant and Carroll Sealey liquor (cid:127) witness, swore another escaped bought Pryor, Mr. Eugene from the latter and he appellant part April, liquor intoxicating present Sealey, Pryor, bought whisky when while ap- 25th. pellant
So that the State did not testi- testimony depend upon of the “amateur detective” “a character similar.” Neither did .mony detectives, them, induce, nor or either of were instrumental they the crime. What to commit did to detect having, appellant him in commission crime. conviction was for sell- pursuing business of prosecution prohibition intoxicating liquor territory—bootlegging
worst Fitch v. Texas Crim. type. Eamsey Eep., Judge far designated accurately, so of this char- goes, bootlegger acter, thus: was an “He unfair of the man competitor engaged under the restraints sale of law. liquor safeguards He was defiance law. The business in received no at youth doing protection hands as the law case of the saloon provides his He keeper. gave did, no bond to house. He as he his keep orderly might, ply in all (and hours His became night). place refuge crime, for the depraved, spot, breeding ground plague refuge and shelter of and in outlawry, every indiscriminate worse way It, more destructive than shock or the ocean’s storm.’ 'earthquake’s man, case, *10 man of like in this as it was a mold the blind tiger It the to reach. so much to him law not sought sought punish sale, for the the up place sale as break his business and to prevent Bepohts. 84 Texas Criminal [tJune, him of business. It sought drive out not so much to punish him as to protect the imposition society felony his punishment con- existence.” tinued characters,
Of just the two this one designated by Judge Bamsey, detective,” “amateur it to me or the seems the latter would be in- the preferable to former. finitely in,
I from, do not concur but dissent express my portion of Judge opinion Gaines’ wherein held' effect that because of appel- admission that the bottles the State’s lant’s witnesses claimed he them, sold to whisky, had contained it reversible error to introduce in State to evidence these bottles of permit before whisky The is as subject law laid down Mr. jury. Wharton in 24c, Ev., Wharton’s Crim. sec. as follows: “It error to exclude evidence or disprove issues, relevant to tending prove although admitted, admission, facts are notwithstanding has prosecution competent to prove support evidence it. right, charge lose their admitted, force, probative Facts when fre- frequently reason alone. Through admitted for this loose as admissions to quently facts, both áre to be apt confused as to what is admitted, what and are often consequently "is misled.” Article 1 of our Code of Criminal Procedure expressly declares that code was intended to embrace rules object applicable to of offenses the laws prevention against prosecution seeks, “1. To adopt and that it among things: measures for the commission crime. 2. To exclude the offender from preventing to the hope escape. all To of each bring investigation offense tending the trial of the case evidence conviction produce or ac- commands courts to thereby permit And introduction quittal.” of all evidence that would or tend to have convict this effect. legitimate reason had for appellant trying prevent The introduction very which he of these bottles sold to these whisky respective had. wit- crime, nesses was to conviction and for his escape because punishment of this did the introduction testimony “bring investigation” his tending this offense evidence conviction. produce whole, me occurs to that this case should not have been Upon but reversed affirmed. Judge Presiding SON; DAVID re- concur (dissenting).—I versal, am of opinion there is error that the indictment holding found. There seems to be no to the bear- legally facts upon matter. The court adjourned terms of statute April. on the 21st bill of indictment was returned on the day 25th The court makes this bill ex- April. statement : ceptions
“The court overrules defendant’s motion.to quash, believing Mizell, case law enunciated of the State Crim. Texas Rep., 226, 128, inclusive, reported 128 S. W. 125 to Rep., pages term, the issue the court’s upon to extend the *11 87 j Alexander The 1917, of fact, as a on the 21st A. D. the day April, being that states court, of this the seventh .week term March-April grand of the jury come into court and stated open then in session and having being in hand and court had the business could not the not finished they term of extend the the court so that and requested do order enabled to finish the another week in be might thereby matters then under said investigation, court'granting request by in S,. of the volume upon order entered minutes District Court duly vested in Bill No. de- Senate page in of the of of Texas of the laws the State chapter general scribed as follows: Acts of the . . . Thirty-fourth Legislature, “ in term of District Court District 'The Judicial Sixty-sixth Ilill, in Texas, of shall be holden said comprising County March, Hill, follows: first Beginning January, Mondays and November of each Each term September of said May, July, year. weeks, in session for or until the period continue may of, save except and the term beginning annually is for the Monday on the first July may period ” five or until the disposal the business.’ Act of Legislature referred to is not fully quoted in his Section 1 of the Act qualification. is trial copied by judge. 2, however, Section was not and reads as follows: “The near of the end of the session approach and inconvenience from unequal district, of court said resulting an emer- creates and an imperative gency public necessity constitutional requiring rule which that bills be three several days read requires suspended, and shall be in that' this Act take effect and force and after its and it is so enacted.” passage,
It will be observed from this Act of the reading Legislature of the the extension term court under article 1726 of the Eevised Civil Statutes has no application. This is conceded opinion. The and the majority evidence bill excludes the idea that there trial before the court at pending the time the order was entered. The reason for the extension was that the grand jury requested it that be enabled to they might dispose some matters they had under Massachusetts investigation. has a similar statute to article 1726, supra, provides that “whenever criminal case any shall be trial term, at end term any such bemay continued until such case finished.” The Supreme Court that State held that it ap- term, to cases on trial at the end plied only actually of a and not to a which, case term, at some time previous during had been begun suspended, and actually trial the end progress of the at term. That “Whenever court said: criminal any case shall be on trial at the end of term term, finished, be any may continued until such case is and the in such case jurors be sitting justice to serve presiding until the same concluded.” “We are of opinion that the words 'on trial’ in this statute are to be taken their literal meaning, Beports. Texas Cbimiítal [June, on trial before the court end at the actually must he jury the case is, if in of a trial stage That proceedings term. of the time, between empaneling at actually progress -reached, term verdict, the end rendition of a course of business ordinary during not be concluded trial can case an law, adjournment in such had. as established by in which at some time to cases previous does not apply The statute dur- reasons, begun, suspended term trials *12 not of trial the term are at the close of actually progress and which Court of Massachu- Supreme What was said before the jury.” There are other statutes supra. here article to applicable setts is court, and other means of terms reference to the continuation with The trial terms. courts call such regular may court besides of holding Those of business when deemed disposition necessary. for the here. This was not an to call a attempt special have no application court, call. There are is extension statutory pro- term of courts, towit: statutes cre- reference to continuance with visions the terms thereof that such courts providing courts fixing ating finished. of time and until the business is certain length continue a Under, restriction. such statutes and not a is an amplification That relates continue without adjourn- amplification term which such to is dis- until business before court order of the court and or noticed that by It will be apply. That rule does not here of. posed limited to seven or statute the court is terms of the present limitation That is evidently of the business. until the disposition the term. Its was to to extend purpose of the court upon power not, if and if then necessary, hold seven weeks court to authorize the continue, This was not intended the seven weeks. court should not extension, a limitation but was upon power power to grant has statute under consideration the business -If under the extension. weeks, it would be adjourned, the end of the seven of before disposed as soon as the business was dis- it of the judge and would be duty .economized, to ad- of, had not been the seven weeks although posed should be reasons this construction why. it. There are obvious journ itself, To stated in the statute towit: these is it. One of upon placed terms of court said from unequal resulting “the inconvenience avoid is, limitation; reason underlying another district.” There is court, to liti- the inconvenience holding incident to expense avoid the incident court. costs, holding and expenses jurors, gants District Court conclusion that the the correct seem to be it would So was law on the 21st day April, adjourned by County, in Hill The than that date. legislative longer to last or not permitted necessary, continue seven weeks should was that intent if before the end seven at or terminate was to it if There that date. is nothing not continue beyond could weeks. It the idea that it with The word “or” carries “extension.” indicate The is correct. and this construction purpose legislative such Campbell The 1918.1 "or” The statute implies the alternative. disjunctive
word alternative, not last than longer stipulated it could “unless.” sure weeks. "Or” means discussion, statute it found this rule to the will be
Applying statutes mentioned that where the it comparing already other, in- class and “or” in the it shows an “and” is used in one word amplify tentional on the the Legislature length purpose part restrict, in the other. And one, terms in to limit and duration term in Hill the reason in the statute itself given fixing mind to lim- shows it was the purpose legislative place the Act. itation on the terms as The length specified reason If stated in bill its itself carries purpose. could of, continue till the business was the order of extension was not authorized. of “extension” The idea or even legal prolongation excluded. The trial this as correct judge recognized and held not continue until did by entering extension order. It such order only by of extension that the jury returned the indictment. extension was unauthorized. The term closed 21st. The indictment was returned the 25th of the month, a date when there was no legal authorized term of court. opinion
I am the that the order of time, extending *13 under the bill of facts set out in the exceptions as qualified judge, shows the.extension of the clearly the 21st of April beyond the end the seven weeks was The void. court had no au- term, and to extend the that the term thority could be lengthened of law until the business was of. When operation night 21st o’clock, ended, came at weeks term law terminated. I dissent respectfully and believe the should judgment reversed the'prosecution dismissed want of a indictment. legal
OCTOBER, Campbell L. A. v. The Decided No. 5068. June 1918. Court—Abandoning Difficulty—Rule —Murder—Charge 1. Stated. difficulty by abandonment of the defendant does not arise where continuous, the difficulty only change position did not parties, abandoning and where the facts raise the issue the dif- charge ficulty there was no error in court’s failure to thereon. —Same—Suspended Sentence—Charge of Court. sentence, pleaded suspended defendant Where there was no error the court’s requested charge failure to should not submit