*1 y. of Travis Bergeron, Relator, Co. 1915-1 State, ruled the Alabama Court in case of Green v. Supreme by Ala., What inter object 190. was the and purpose prohibiting ? marriage between the races there children born being prevent one Fort had taken further Worth City step mixed blood. married, act of intercourse not single than the it when prohibits birth of chil general State—prevent out carry policy An not city of mixed blood. ordinance of must conflict with dren announced denied, of law as agree a State law is not we rule ordi Davidson, him, the authorities but this Judge by by quoted law, but is an evil dealing nance is not in conflict with State with legislation, authority about which the State has enacted held, its and this court city charter, granted specifically by 603, Dallas, Rep., city 32 Texas that a enact Ayres may Crim. as offense an act is not defined ordinance defines which which is conferred Code, city. to do so authority the Penal where more. The done, nothing This is of Fort has what Worth City correct, Davidson are wherein by asserted legal propositions Judge except have no unconstitutional, held that such an act would but they file, in this case the record by to the facts shown Worth, of Fort of which we are required the charter of the by notice. act take judicial affirmed, respect- should be and I opinion judgment
I am of dissent. enter this fully my Relator, Bergeron, Lillia Ex Rel.
State Al. Travis Et 20, January 1915. No. 3354. Decided Prohibition—Corporation Court—Statutes Construed. 1.—Writ Texas, adoption 1891 to the amendment Constitution of Since Corporation creating defining their validity of Act Courts upheld Supreme both this court and the Court of Abrams, 465. Following parte Ex Texas Texas. 8.—Same—Corporation Construed. Court—Statutes Statutes, 1911, 904, giving Civil Courts Article Revised justices peace, all jurisdiction with criminal cases aris- concurrent in which the punishment laws of fine ing under the criminal $200 fine exceed only, maximum within where city, village, limits of such territorial town or is valid and constitutional. —Same—Vagrancy—Statutes Construed. prosecuted Court for Where relator was Code, appealed under article Penal conviction to prose- jurisdiction, that relator was courts had contention these houses, Code, under Articles 496 Pehal cuted therefor, county jail, imprisonment in the assessing punishment includes i is untenable. Statutes—Corporation —Same—Validity Courts. constitutional, Procedure, are Code Criminal Articles concurrent valid, Courts give (cid:127) Reports. Criminal [January, peace, justices in all criminal cases under the criminal laws of this only. the punishment Following Harris v. Finley,
State in which Texas, and other cases. *2 Court—County Prohibition—Vagrancy—Corporation 5.—Same—Writ of Court. charged upon complaint Corporation relator of Where in the was Court being vagrant of with un- the lawfully Austin a that then there was and she wilfully keeper prostitution the of and a house of in said city, and kept prostitution the purposes which house were for prostitutes of and where etc., $200, resort, permitted and was and the convicted fined in sum of Court, from plied had appealed ap- which conviction to the wherefrom she court prohibition to this for a on the that ground neither writ Held, Davidson, jurisdiction. the writ Judge, must denied. dis- senting. 6. Construed—Jurisdiction—Vagrancy. —Same—Statutes plain language the was Where the made the manifest it. Code, prosecution brought under article Penal which defines vagrancy, provides keeper that every prostitution and of a house of a shall be deemed etc., the vagrant, prosecution contention that the brought under was articles Code, defining 496 Penal and and keepers and bawds of dis- orderly and by imprisonment untenable, both in the jail county houses Corporation original jurisdiction, had Court the County Court appellate jurisdiction case. of the —Same—Repeal by Implication—Jurisdiction—Practice. 7. Code, question repeal by implication Where of article Penal by Court Code, 495 and neither articles Penal raised was in the County Court, appeal nor question can not be raised for court; however, repeal the first time exists no there implica tion or otherwise . 8.—Same—Rule Stated—Jurisdiction—Writ Prohibition. jurisdiction, exceeding It is in which court has or cases lie, jurisdiction, the writ his have will defendant must objected to the of the court at the outset and must it legal remedy, obligatory upon appellate else will not Davidson, grant prohibition. Judge, writ of dissenting. Stated—Rule to the 9. —Same—Case Stated—Plea Jurisdiction. appellant If the desired to contend articles Penal Code disorderly punishing keepers defining by implication repealed houses houses Code, (j) subdivision of article Penal pun- place ishing vagrancy, proper a on that ac- prosecution either in the was where brought, count appeal. Davidson, Judge, dissenting. on or in Stated—Statutes Construed. 10.—Same—Rule disorderly house Act was at the keeper directed house, necessary -prove it particular a defendant was at house, particular specific named the indictment a time purpose statute, for the kept time denounced at the not trade, livelihood; vocation, calling pursued a obtain repeal by implication but it decide statute vagrancy house Act. Travis County. From original in prohibition;
Rule nisi for writ a of prohibi- judge trying cause restraining county appeal tion oe v. Belator, Travis Co. Bergeron, 1915.J relator conviction thereof Court charging fine of assessing $200. the case. states The opinion writ Posey, remedy by & for relator.On Grover Pac., 38; Judges, Superior Terrill v. State v.
of prohibition: S., 136; Denver, Ann., 249; Alix, McInerney re 166 U. 49 La. In 516; 32 Cyc., Pac. by implication jurisdiction: on Ex repeal High
On question ed., 3rd Remedies, 749-755 et Legal seq. traordinary pp. Ency. writs of procedure
On question general prohibition: Practice, 1138-1144, pp. inclusive; Williams, Pleading Hirzel, Mo., 435; 227; State v. Smith v. Ark., Whitney, S.,U. *3 of of inferior objection jurisdiction Farqu On court: Q. Div., 552; Morgan, Lay,
harson L. R. B. McClure p. v. v. Ferris, 58 208; Ry. Mo., 69; 30 Dillard v. St. Louis Ferris Ala., Co., v. 100. Vt., of jurisdiction: State, of statutes repeal On and Smith v. State, State, 286; Haflin 5 id., 212; v. 7 Texas Crim. Ellison v. App., Texas, Texas, 588; id., 248; State, Greer Norton v. State, 627; State, 18 Texas Crim. Blandford State, Lott v. 387; App., 30 Texas Crim. 566. id., 627; Ex parte Degener, App., Lane, General, for Assistant Attorney State. G. E. us
HARPER, Judge.The record before discloses that a complaint was in the of Corporation filed Court of against applicant City in “on or about Austin, charged applicant which it was the 1st day day on each successive from date of and to the 29th August, 1914, was a vagrant, in then and there un August, day house prostitution, of a in wilfully lawfully did then and Austin, there which said as a keep unlawfully and where prostitution, house for the were purposes prostitutes per and reside for the their vocation,” mitted to resort etc. purposes plying Court, for trial in On the case called day Corporation in alleged a which she plea that “the applicant appeared filed alleged against offense be the criminal attempted offense Texas, a municipal offense, of the State of asked laws to a court.” This is all filed transferred proper plea a of not guilty. than It was over- she was fined in the two tried convicted sum of ruled, when dollars. hundred to the executed County Court, the case a
She bond con- appealed Court in this cause. When County for appearance ditioned the docket a applicant reached on filed County case was dismiss, alleging: motion to a charges applicant being vagrant as the That Reports. [January, Crimiital that she did then and there a unlawfully keep house for the purpose and where
prostitution, prostitutes reside, were permitted resort and it is etc., insisted that the offense alleged brought under articles 496 and 500 punishing the keeper house of prostitution, which a assessed punishment portion by imprisonment and the jail, Corporation Court would have offense. 2. That Courts have over com- crimes mitted and that against this prosecution for offense laws the State and against the not a violation aof ordinance. city is contended that articles 963, 964 965 of the Code of void, Criminal Procedure are unconstitutional and are no Courts part constitutional of this judiciary State. Upon above motion overruling judge applicant filed its writ petition asking issue from in this prohibiting exercising any jurisdiction cause, and restraining County Court further proceeding cause, and asks that we enter an order requiring case, the grounds dismiss the same alleged being those motion filed in the County Court a dismissal of praying for the case. filed, ordered the for and set the down cause order determine whether or not we should the writ hearing issue for for. have filed Attorneys exhaustive
prayed very briefs, study. we have them careful entertaining thought The first is the one the Cor- question presented, presented in as the Court, is that prosecution violation of poration *4 laws of the not an City criminal State and ordinance of the city, held, of the offense. so jurisdiction Court had formerly court in the Constitution amended 1891 consequence in by providing establish deem that "the such other courts as Legislature may may thereof,” organization etc. prescribe jurisdiction creating validity of that amendment the of the Act adoption Since their jurisdiction upheld Courts has been Abrams, Ex 56 this Court. In Supreme parte both court and 465, this held: court Rep., Crim. try "The of the in Courts cities authority court, law has been the State before this against frequently offenses radical subject among composing has been the difference judges in this court, resulted in much confusion decisions of and has 248, Rep., In ease Leach v. 36 Texas tribunal. Crim. Constitution, 5, S. it was held that our 471, 36 W. article Rep., ‘judicial that the vested section this shall 1, declaring power State named courts and in such others law.’ may in certain as be provided court incident give can not created as Legislature municipal concurrent with a municipal corporation, jurisdiction, Court, however, laws. Our in Supreme over violations of State Judge Brown the case of v. elaborate Harris opinion by It terms 133, ruled otherwise. is in Stewart, Texas, 91 that case in 151 of Travis v. Bergeron, Belator, Co. Court 1915-1 con Constitution, to under the Legislature The that, power, held over recorder, peace justice fer a city jurisdiction refers State’; and the laws of the against offenses committed Constitution, authorities: this to the following holding authority 929; arts. Procedure, Criminal 1891; art. amendment Code 48 Towles, 584; Ex Texas Crim. App., parte Ginnochio, Ex parte 565; v. Blessing 413; Texas, v. Texas, Templeton, Gibson Hanscom, Texas, 321; State 641; Galveston, Texas, Johnson v. 521; Ala., State, 18 233; Nugent v. Helefrid, McCord, Nott & v. 93; v. New, Ind., Gray Wallace, Ind., 569; Gulick Waldo v. 24; (Va.), 30 Gratt. 76; Hardwicke, Burch State, 2 Harr (Del.), Scott, J.), 4 Halsted (N. Hutchins v. Rep., Ex 41 Texas Crim. Wilbarger, later parte “In the seems practically announced in Ex Leach theretofore parte the rule in effect held in Ex Wilbarger overruled. parte have been that, The expressly providing Legis under the amendment of 1891 may as it deem necessary other courts establish such lature may conform thereof and and organization may jurisdiction prescribe thereto,’ inferior courts of the district those than to create other courts authority Legislature complete Constitution, their jurisdiction. enumerated prescribe has since case and the rule therein established conclusion reached Hart, 41 Texas of this court. Ex the settled holding parte 581.” enacted Legislature After amendment the above adoption Statutes, reads: article Bevised within shall have jurisdiction court (the Corporation Court) “Said which it limits of said town or within city, village, the territorial ordinances of in all criminal under the cases established, arising or hereafter to be village, force, passed, said town or now city, concurrently justice peace shall also all situated, village which said town or any precinct city, State, in which laws of this cases under the criminal arising criminal fine and where maximum of such only, the punishment within the arising hundred dollars and territorial two exceed village.” limits of such town or city, has been stated, upheld the statute
As hereinbefore provision therefore Supreme both *5 and the to its if in overruling jurisdiction, Court not err did offense, to certainly had jurisdiction try Court and should entertain jurisdiction appeal. would have Court County under articles an offense complaint charges that the is next and a house Penal Article 496 defines bawdy 496 and 500 of the Code. to be house, article prescribes punishment while disorderly in who is keeping concerned against anyone keeping anyone assessed $200, and assessed at a fine of house, such fixes the to be punishment days in the for each offense. county twenty imprisonment jail would Code, If filed under these articles of one complaint Reports. anuary, 76 Texas Criminal \J
or could contend that the of Austin would Corporation Court of have or that offense, appeal, Court on jurisdiction County under such And circumstances, jurisdiction of the cause. if the Code, had under those brought been articles of the ,as would doubtless But applicant be entitled to the writ for. prayed the complaint drawn under those Code? of the provisions By plain of the is made language complaint it manifest prosecu tion under article brought Code, the Penal article which defines “the and shall be vagrancy, following are provides, persons punished vagrants,” subdivision of said “j” article providing of a shall in deemed a “every keeper law prostitution” be and the vagrant, law for punishment prescribed by offense article 639 is alone and a sum not hundred two exceeding 'dollars, under this brought of the Code the provision Corpora tion Court would have jurisdiction offense as in article provided 904 hereinbefore copied, other of the laws and Con provisions stitution of this and if the jurisdiction filed, case when County entertaining would not err in jurisdiction of the case on in so appeal. necessarily And we holding that articles 964 and 965 of the hold Code of Criminal Procedure are not unconstitutional void, but are valid enactments under to the amendment the Constitution adopted in 1891. Harris Finley, Texas, 133, cited, parte Abrams, and cases and Ex 56 Texas of all disposes the motion questions dismiss presented to case as to the and we hold that presented County County Court did not err in said motion as to it. overruling presented
Another presented to Court in the motion filed, filed therein is to this court sought presented briefs but as we have held and now hold that the committed error in it, we do not think overruling pleas presented entitled to a writ Court from prohibiting fur- proceeding ther with the case. The raised for the time sought first is that as articles of the Penal Code defining pun- ishing house were disorderly passed subsequent to the defining articles those articles vagrancy, houses punishing keepers subdivision If implication repeal “j” of Act vagrancy 634). (art. provision repealed by law not articles 495 and 500 Penal Code, one Court would have try charged article cases in which only court has no or is its exceeding jurisdiction, writ Prohibition, will lie. on Habeas Bailey Corpus section down the rule: lays
“The definition term -been ‘jurisdiction’ gen- eral rules fully from error have distinguish it apply quite discussed of this work. parts
“It ap- remains to attention here that distinction call *6 of Bergeron, Belator, Co. Travis 1915.1 for writ of plication said the writ issues to prohibition. restrain inferior the acts of court or other tribunal exercising judicial which it has no at all. power, exercise that authority And also where the court or inferior tribunal has jurisdiction of subject matter and the defendant is duly served with or process voluntarily the writ will not appears, be granted.” United States in Supreme v. Whitney, Smith
S., U. held: “It is often said that or refusal a granting writ of prohibition discretionary, therefore not subject writ of error. That be true -may where there is legal remedy, another otherwise, or or by appeal where the jurisdiction of action whose to be sought is doubtful or prohibited depends facts which are not matter of record; made or a stranger, where as he inmay England, the writ applies for But where that prohibition. court has clearly no suit jurisdiction of the instituted prosecution it, before and the defendant therein has objected its at the outset and has no other he is entitled remedy, to a writ of prohibi tion as matter of and a refusal right; it, to grant where all pro ceedings record, be reviewed appear on error. This is the clear result of the modern English decisions, in which the law concerning writs been more discussed than fully explained in the older Dorster, S., authorities. etc., Re 4 B. & 199; Mayor, of London L. Cox, L., Jeffries, R. H. 239, 280; Worthington v. L. R. 10, P., 379, 380; C. Chambers v. Green, R.L. Eq., also See Weston v. Council of Charleston, Pet., 449.” It is thus" is, seen rule “the defendant must have objected outset, at the court he have other legal else it remedy,” is not on an court to writ. obligatory appellate grant the If desired to contend that articles of the defining Code punishing keepers houses houses repealed implication subdivision “j” of article defining punishing vagrancy, for her proper place have presented plea the Corporation Court when the complaint filed, given to rule thereon, for that opportunity court had jurisdiction to enter- tain such after the plea filed, but she did do so. did not Again, file plea and after trial and sentence the ease voluntarily appealed to the County called, when the case was if she desired to enter should plea, it, then filed given Court an County opportunity rule thereon. she did not do, and time, for the first filed, the brief she asks us to prohibit the Court from proceeding further without knowing ascertain what the seeking ruling if she had filed in that court. In our opinion, even we should he of the articles opinion that of the Code defining punishing keepers houses and houses of prostitu- tion, subdivision repealed “j” article vagrancy, the Court- brought, for the prematurely should have been to -rule on that before opportunity *7 Bepobts. anuary, Cbimixal \J us asking to it prohibit from proceeding further in the We premises. can not and will not presume advance court, that ruling by that it will rule when the wrongfully question to it. At presented least until the County Court has ruled on the not has question, she exhausted her legal remedies, all hold, authorities so as far we have been able to that a ascertain, writ of prohibition will not issue it until is made to that appear applicant other legal remedy, or that seeking she remedy will suffer irreparable injury. But had this question been to presented the County Court, writer to at unwilling hold this time that articles 496 and 500 repeal implication subdivision “j” of article 634. We have not it perhaps that consideration we would if the question was direct, to us presented not it deeming to a necessary proper disposition of the case. In writer’s opinion subdivision “j” article 634 in that all providing keepers of houses of prostitution are vagrants, was a certain punishing class of who persons that as pursued business or Under occupation. it it not to that that necessary she was at prove time the keeper of a particular house, but this was character or line of business that to she pursued obtain her livelihood living. or was her calling, trade or it vocation, and atwas this class of people vagrancy
statute was aimed. A similar was question discussed at length State, 62 Texas Parshall v. to The house and house Act was directed at keeper house, of a and it is particular necessary prove the defendant was at the named in time the indictment specific keeper a particular and it at house, was time kept purposes denounced the statute—not vocation, this or trade calling pursued to obtain a livelihood. Such might be a person mer- lawyer, doctor, chant, banker, or follow other business or his calling as occupation or as a means of business, livelihood, and under obtaining yet be guilty the Act house house if he prostitution, keeping, was interested in a house keeping at the for the time named denounced statute. purposes by the Such not however, vagrant could be convicted as person, under the vagrancy not statute, because that would be his occupation or vocation in life— at he would not be the character of whom the person vagrancy statute aimed. These are some of reasons the writer is why opinion other, neither article of Code if it not do repeals does so, there can is not entitled question writ, applicant for the makes clear that wording prosecuted she was statute, under the and not under the vagrancy bawdy house or dis- statute, and the Court has if orderly statute. But it is brought stated, as hereinbefore not not decide in this whether or either provision the Code other, question pre- as by implication repeals Court, sented to and for us nor the the Corporation issue until premature writ for would be improper prayed facts this case. on the under the question passed 1915.] Harris State.
If the should present that court overrules the and when tried she can plea, convicted, an to this prosecute or if fine is in such amount appeal would not permit she can then appeal, present out a of habeas by suing writ thinks one corpus, provision remedies, of the Code the other. She would repeals ample legal and the for the writ is denied. denied.
Writ DAVIDSON, Judge. I views later on my write the questions *8 involved in this case. DAVIDSON, Judge. If decision of Presid- vacation opinion or correct, Judge
ing Prendergast Judge case Harper Pye the writ of should have in this their case. If granted opinion is correct, case incorrect. Pye I do opinion ¡deemit of avail to further write now. If the writ of prohibition case, available in criminal enforcing it can purpose the jurisdiction of the Court of Criminal The writ of Appeals. pro- hibition was case granted Pye’s at instance prevent issuance of writ of habeas and a it. corpus In this hearing the writ was and is denied the accused on the ground urge she did not want of before judge whom the case was county to this pending before court for applied the writ of prohibition.
C. E. Harris v. The State. January
No. 3372. Decided
Rehearing February denied Carrying Exception. Pistol—Statement of Facts—Bills Where, upon appeal from a conviction unlawfully carrying a pistol, exception statement facts bills were not filed twenty within days adjournment after pellant but appeared from ap- record that either entitled to or, not, have the record considered the judgment be reversed should and the cause because he remanded was not at fault in be- record, ing deprived of the same reversible error.
Appeal the County Court of Fayette. Tried below before the Hon. Willrich. from a Appeal conviction of unlawfully carrying pistol; penalty, a
fine of $100. states opinion the case. Aaron Burleson Duncan, John T. for appellant.
O. McDonald, G. Assistant General, Attorney for the State. HARPER, Judge. Appellant and convicted prosecuted of unlaw-