*1 441 doubt whether the killing aforethought malice upon punish ment could not five exceed This matter was not years. briefed submission and was not original considered. written Appellant’s to the objection absence of a charge special requested charge was sufficient to call the court’s attention to Richard matter. 318, son v. 91 Tex. Cr. R. 20 L. 1249. 239 S. W. A. R. nine Paragraph deals with charge specifically punishment tells the that in can pointedly no event punishment more than five unless from all the years facts circumstances evidence they beyond found reasonable doubt wras prompted with acted malice In our aforethought. this protected appellant’s rights particular mentioned. The motion for denied. rehearing
Denied. Crausby Charlie State. 12,441.
No. Delivered 1929. October
Rehearing April 2, denied 1930.
Reported in 26 (2d) S. W. *2 case. states the
The opinion Garrard, Bledsoe, D. Brown and & & F. Crenshaw Lockhart Lubbock, for appellant. all of Dupree, Canton, of Attorney,
A. A. Dawson State’s for the State. CHRISTIAN, Judge. offense transporting intoxicating The confinement for one liquor; punishment penitentiary year. from record that entered into recognizance sufficient
on The not to confer jurisdiction appeal. recognizance this The out on court. form of on set recognizance appeal bind Article C. C. P. This that the appellant article requires himself of the Court Criminal to abide of Appeals judgment of the State of Texas. The disclosed the record recognizance of judgment does bind to abide the Court Criminal Thomson v. 243 S. 848.W. Appeals.
The is dismissed. appeal
Appeal dismissed. of has been Appeals of Commission The foregoing of Court Criminal Appeals examined by Judges the Court. approved by TO REINSTATE APPEAL.
ON MOTION LATTIMORE, a this term this former day ap- Judge. At de- a bond. This defective because appeal was dismissed peal aside, and of dismissal is set has remedied. judgment fect its merits. case now considered record, of bills are number There thus attempted the questions and therefore not filed were an order entered can not be considered. raised to be The bills in which to file bills exception. days granting eighty after the days have been filed eighty-five appear this of this order. grant testified the sheriff who county
The State introduced "aroad north and out on that on the occasion in question a car There was school house that he saw down road. coming cars. When near the road between the two approaching east a short this school house turned and went the sheriff reached to- which he distance, then back to road load gone turned up when he back to school He testified that ward said house. got *3 had him south which he he saw ahead of the coupé road He a while road him. seen little before down the toward coming a testified that he followed car a distance of from quar- further this one-half the road to a said coupé ter to mile down and where the He said met no other saw no car in he car and other stopped. road or about When the he saw place. stopped appellant coupé it, men in a The and two other each of whom had bottle in his hand. his the car, officer out and toward one occupied went stopped got the men. in the three before it one of said parties reaching Just in observed him and struck the had his hand coupé bottle he against seat, of the that he heard back the officer something saying car break and he saw went to the glass fly. immediately liquid in and found it bottles and also broken containers beer containing with He said was under wheel and whiskey them. the appellant a the other his were on In our this made out parties right. against transportation intoxicating liquor. took in his and had the stand own behalf Appellant the car at the it was when where gotten place standing right it, the time sheriff came and that the car had not from up moved in it. He his move- introduced two witnesses who testified to got car, ments short to the the sheriff saw him time time prior of said two witnesses nowise destructive testimony of or contrary The.jury judges to that sheriff. were given of of the State witness. credibility of the and the testi- that the verdict has ample of opinion support
Being af- record, the will be judgment mony, error finding firmed.
Affirmed. ON MOTION FOR REHEARING. HAWKINS, an the trial error in Judge. copying Because said bills were extension order for bills of filing exception
court’s by supple- The error has been corrected not considered originally. and the bills will be considered. mental transcript The 40th Sess. Legislature, Reg. Chap. page changed District, time for terms of court the 72d com- Judicial and Cochran Counties. inadvertence the posed part Crosby By act that one term of court Legislature question provided first should “on the third after the Crosby County begin Monday weeks, in session four Monday continue September” might “on and that term of court in Cochran County should begin after Monday third the first con- Monday September” might two weeks. is shown bills of tinue of said 72d District court in opened Crosby County Judicial time 24th. specified, Monday, which was September immediately and instructed as to their duties and empaneled their on Monday deliberations. The civil docket was called begun and cases set for trial. called the On Tuesday morning docket, after which direct to Cochran appearance he went there three o’clock in the afternoon on opened Tuesday docket, and called the some and tried civil suit appearance involving matters. the term of court urgent judge finally adjourned Cochran was back in on Crosby County Wednesday *4 trial cases there. Thursday with the morning proceeded County When the left to to Cochran Crosby County judge go- was entered. Crosby County order court in recessing adjourning court On returned into Saturday, 29th the September indictments, them the one this appel- number of among against lant. that the Legislature provid- contention act of the
It is appellant’s to in Cochran Counties two terms of court Crosby for the ing an conflict which ren- at the same time irreconcilable presents begin for far as it undertakes to the act void in so provide ders absolutely and there- term of court in Crosby County, September any regular at said him and his trial that the indictment returned fore against term of law and void. of court were without authority purported 110, 639, which Ex Ark. 4 S. cites 49 W. parte Jones, Appellant from A of authorities to his contention. number appears support case, states are in direct to the holding other opposition Jones sup- has been called our attention one only which which 445 Gale, 523, 14 v. 14 extreme Brock Fla. porting appellant’s position. 356, at bar a case with the one presents directly Am. Rep. point said, in which the court
“It true that both at the the court could not sit in counties it time, same does that it could not sit in county, not follow one Duval, the court was and was therefore not sitting sitting named St. the term in Duval at the time held judge Johns. as in the law for we think do.” purpose, might lawfully Courts, 134, In onWells follow- Sec. Jurisdiction statement, mistake, “Where, by a law court to be requires held two places circuit, same it is in discretion day, judge hold; to select one he which will under selection the pro- bewill valid.” ceedings cites
The text
Florida
turn
text is
(supra)
Commissioners,
579,
cited with
in Carland
approval
v.
5 Montana
period Elliott, and those McIntosh stances here the presented appearing and Wilson cases There the was regular (supra). judge term of court one of his district such county regular during term he to his term went another district and held county special court, transact backward and forward to make orders and business of the same attack was made in very courts. on the dictments in the Elliot cases as is here. McIntosh made We quote in McIntosh’s case. Ramsey’s Judge language allied, and out of said is another question,
“Closely growing the claim and contention of that indictment should have appellant, the Court for the reason that District been quashed Judicial Fannin at the in session in the county District was adjoining as term court which he was to be time the under special sought understand, convicted, made, as that we the and the contention at in session two different at same time. court could not be places Denton, denied, claimed, It that Honorable Ben not nor it H. or trial, elected was that throughout not judge, present legally fact, fact, if it be a that a District resulted from the any injury is not disclosed county. Court was held being adjoining the court Bonham was in the bill of whether recess not, it is us that if the elected district legally or clear to Texas, law, Paris, Lamar under valid County, was sitting that he could claim duly under notice not given, Not the Act quoted to have else. above only been somewhere ought authorizes, terms but the constitution also of court special permits, law, is in manner as may provided by such and claim the act of the indict- position complain, him was because of the or the occupy- ing illegal personality person the law em- the district the district bench. was judge, term District Court and him to convene a special powered court for that if saw another adjourn might, proper, purpose district, at a in his session of suspend different place hold a or recess the court order to such other county, it.” term, required if and the special public good necessity public held in that the term of court that we are of It follows com- unauthorized, and that no was error was Crosby of. This dis- complained trial particulars mitted two. Having numbers one and bills of exception poses appellant’s term of court held Crosby reached the conclusion answers valid, appellant’s Elliott (supra) directly *6 was while was working jury grand complaint Cochran County. another in and part for one day absent the indict- and when was empaneled when present court. into ment was returned They examined. three, four and five have
Bills of exception demand- error, raise any question present our opinion do discussion. for overruled. rehearing motion Overruled. George Meredith State. 27, 1929. 12774. Delivered November
No. 7,May Rehearing 1930. denied Reported (2d) in 27 S. W.