*1 Hеnry State. Hill v. The Allen 28, 1943. Delivered April 22475. No. Rehearing 1943. Denied June Granting Mandate, for Stay motion Defendant’s Order June 1943. States, United Supreme appeal Supreme States filed of Certiorari Petition Writ 2, 1943. September Court, Court, in United States dismissed for Certiorari Petition for Petitioner. of Counsel motion 1943. Octоber Abating because Appeals Appeal, Criminal of Court of Order 3, 1943. November Defendant, death *2 The states case. Hardin, Dallas,
Doss appellant. for Gauldin, Dean Attorney, Pip Criminal District and A. Chas. pen, Dallas, Attorney, Assistant Spurgeom District both of Bell, Attorney, Austin, E. State’s State. BEAUCHAMP, Judge. appeal charge
The a is from death rape. sentence on The case (See has been appeal, before this on a former Hill v. ficiently (2d) 369) 157 S. W. at which time the facts were suf- stated and appeal. are not different Supreme Court of the United States reversed the case on ac- showing count of the of race discrimination in the selection of grand jury Subsequently him. indicted he was rein- dicted in fully the manner hereinafter stated and the trial had on the second indictment. timely quash
A motion was filed to the second indictment. ground grand jury set out was that a One member of the re- turning grand this indictment was commissioner to draw the Appellant which returned the former indictment. has filed error, no brief the case we are unable to conceive of the might reason injury have resulted possible or of the this fact. section in the second proposition set out A more insistent impressed attention quash has attracted our
the motion to to that being only different question in the case us as require which will heretofore discussed has been alleged to have rape is opinion. The offense attention in this Texas, of De- County, the 1st in Dallas been committed cember, days an indictment few thereafter 1940. Within death, sentenced tried and he was returned Code Criminal appeal came. Article former which the 1925, provides period of one Procedure, as codified rape be returned. must indictments within which all passed (Regular Session, page 1335) Forty-seventh' July amending effective on which becаme Article act alleged. 1941, eight commission offense months after the *3 as follows: read amended article Sections 2 3 of the indictment, pendency an informa- the of time “2. period tion, complaint computed in of or the shall not be limitation. ‘during herein, pendency,’ “3. the used means The term as indictment, period beginning day in- of with the the time
formation, complaint competent jurisdic- is filed in of or a court is, by ending tion with the such accusation order of having thereof, jurisdiction in- a determined to be trial court any valid for reason.” affirming prior the
This was the decision of this court tо prior of the of case and to the reversal States, of date June 1942. On October the United which was returned, 16, 1942, ap- which was indictment was proximately of a ten after the commission months alleged. rape time the commis- offense of amount of between indictment, period of and thе first added to sion from June the offense 16, 1942, 1, 1942, less to is much than October year. of the amendment above Under the terms period as a of limitation would not be available contended, however, pas- prosecution. It that the bar to the is I, sage of of is in violation Article Section this amendment States, and of Article Section 16 Constitution forbidding Texas, pas- of State of the Constitution sage If post laws in relation to matters. facto ex prosecution is to be sustained be barred contention and it would be the duty this court to reverse prosecution
and order the dismissed. Whether it is not. question which we must decide. are to impression We deal with a far of first so we are able to ascertain. Seldom has it the courts been before any very State on sufficiently an issue to aid us much similar in the conclusion Appellant which we filed must reach. has no sustaining presents brief in the authority case and no his con- equally tention. It is noticeable that while the of the Dis-* office Attorney ably represented presenting trict has been the facts court, they subject. before this have cited us no case on the Corpus quote Secundum, page From we Juris Volume following: limiting prose- “Since enactment the time for the only, cution of entirely subject public policy offenses are measures of are legislature, they to the will of be changed repealed altogether any a case where acquittal absolutely acquired by completion has not been period limitation; complete a defense but where has statute, away by arisen under such a it cannot be taken sub- sequent repeal So, too, thereof. extends a where statute period limitation, provides tolling thereof, ap- plies passage to offenses nоt at the time of the barred act, prosecution may any commenced at time original newly although within the established expired; oper- of limitation had then cannot but statute such ate to revive offenses which were at the time of its enact- barred ment, would, case, since it in that ex facto.” Texas, Sup- It was held in the case of Sneed *4 plement, page 66, Legislature power to that had no revive right prosecute by passed an enactment after the of limitation had run. This cited case is for the statement foregoing article; that in ques- effect but the exact power tion before us here is whether or not the has running after the of an commission offense to toll the of limi- provided by tation as law at the time the commission of the crime that it will not run in which there (cid:127) complaint is an indictment or and information party Conceivably the of for such crime. that in was not the mind they opinion when wrote in the Sneed Case. The any by question Corpus absence on the citation before us diligence persuasive Juris Secundum is that on our part not avail to find such a from decision our courts. question concern,
Inasmuch is one of as raised Federal power we have exhausted our to find the exact before discus- most valuable and read the the court of last resort many referring From decisions. to Federal sions text writers Edition, Phrases, Permanent in and such cases discussed Words and may it is settled 15, page seq., said that 732 et it Volume every rеtrospective thoroughly recognized not being post If the necessarily prohibited ex facto. statute as mitigates prescribed in subsequent punishment enactment existing it would committed the statute when the offense was penal retrospective criminal not come within the definition. A deprive party law that does not of some constitutional offense the time the to which he was entitled under the law at disadvantage his was committed or does not alter his situation to tersely post summarized is not ex has facto. Mr. Justice Chase post every done ex facto law to law that makes action passing before the the law and was innocent when such; every punishable law done to become criminal and that aggravates greater a crime or than when it was makes greater committed; every ishment; changes pun- law that and inflicts legal “every
and law that alters the rules evidence required less, testimony, and receives or different than the law offense, at the time of the in order commission to convict foregoing thought the offender.” The included the best subject making summary at that time and in such Mr. Justice Chase cited numerous authorities from both state fеderal approval. Phrases, supra. courts with See I think Words accept summary we at this time and that we will be fairly excluding in safe all contentions for matters not included doing difficulty sustaining within it. In so we find no the above quotation Corpus Secundum, positive Juris which is a subject sustaining ruling declaration on the before us court, requiring trial the affirmance of the case court. subject, In Ohio, a recent case on the Beazell v. State of S., Stone, page rendering Mr.
U. Justice court, keeping summarized ex facto laws in with the fore- going citation Words Phrases and in no wise different Commenting passed tо it. on the act of the State Ohio subse- quent offense, to the commission of the he said: “It does not deprive plaintiffs any previously error of defense avail- able, quality charged. nor affect the criminal of the act Nor change legal does definition of the punish- offense or thе quantum ment to be meted out. The proof and kind required *5 guilt, questions may and all to establish be considered determining guilt the court and innocence, remain the same.”
338 expressions found in
He then observed that were judicial opinions earlier limi to the effect that a constitutional may tation of evi be transcended in the rules alterations procedure. dence or have found it so in several We opinions to which we directed. He ftirther ob have been may changes operate procedural served that there deny under the laws force accused defense availablе at the time of the commission of his offense hipi arbitrary affect manner as to otherwise in a harsh and prohibition, fall within the constituional and added: “But statutory changes trial is now well settled that in the mode of evidence, deprive rules of which do not the accused of operate only defense and which in a limited and unsubstantial disadvantage, statute, prohibited. manner to his are not A which, indictment, enlarges may persons after the class of who trial, by removing disqualification at be witnesses persons felony, Hopt convicted of is not an ex law. facto v. Utah, 263, Rep. 202, 110 U. 28 L. ed. 4 4 Am. S. Ct. Sup. changes Rep. Crim. 417. Nor is a statute which the rules of evi after the dence indictment so as render admissible previously inadmissible, Thompson the accused evidence held v. Missouri, 922; Sup. Rep. 171 U. S. 43 L. ed. 18 Ct. changes place trial, Minnesota, or which Gut v. 9 Wall. 573; hearing 19 L. ed. or which abolishes creating aрpeals, a new its stead. See Duncan Missouri, 377, 382, 485, 487, Sup. 152 U. S. 38 L. ed. Ct. Rep. 570.” says question may not be settled
by any
may only
formula or stated rule. It
be said with cer-
tainty
provision
per-
was intended to secure substantial
rights against arbitrary
oppressive legislation
sonal
“and
legisaltive
not to limit the
control of rеmedies and modes of
procedure which do not affect matters of substance.” As au-
portion
thority
Mississippi,
he cites Gibson v.
Carolina,
and Mallett v.
U. S.
North
Further consideration casеs and comments from inappropriate would seem and we text writers will rest our con-
339 year foregoing. of one upon elusion the The of limitation Legislature July 9, of the had not on when the act run running the of limitation for the became effective which tolled complaint an of time which indictment crime pending. not defense to information were Limitation is had acquire in until it accused vested which the could Legislature power accrued within of the to him and it was the year pass a law within one tolling after the commission of the offense running limitation, did. the which it A in same reference to the former decision of this court the will, dispose questions. case of all other of the trial court is affirmed.
ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge. rehearing In appellant position his motion for takes the that grand jury illegally first indicted him was consti- grand jury, tuted against purported and that indictment returned body all; him was in fact nо indictment at that, therefore, of the 47th Act set out our original opinion application has no his case and that having year indictment returned than a been more after prosecution offense was committed is barred under the prosecutions statute of rape. limitation supporting appellant State, As his contention cites v. Wells 806; 2 Rainey S. 479; W. v. State 19 Tex. Lott v. App| State, 627; parte Reynolds, 18 R. Ex Tex. Cr. 35 Tex. R. Cr. 120; parte Ogle, 122; 34 Ogle State, S. Ex W. 61 S. W. v. 1009; 43 Tex. State, R. 63 Cr. S. W. Stroud 90 Tex. Cr. 214; R. 235 W. Riddle v. S. 90 Tex. Cr. R. grand S. jury 725. All these cases are W. where a com- posed of either than every more less 12 men. In such cases act grand organized jury of a thus it nullity has been held to be a ground grand jury. that was in fact no Those authorities organization parellel grand furnish no jury against appellant returned the first indictment not do opinion support appellant’s position. our validity upon against An attack the first indictment upon claimed based discrimination because of his color validity grand jury’s could not affect the said acts in other body returned instances. Indictments would be valid save charged discrimi- crimes to class those which nated members against against. by appellant the first point raised gfand challenge legality did not indictment it, qualifications com- presented question of the members validity grand of a posing jury. It an attack grand jury the act particular for the reason that act of said against of a class whom done was directed member *7 State, 102 Tex. R. was claimed. Juarez v. Cr. discrimination particular indictment thus assailed 1091. S. W. against appellant. held to have held invalid as It cannot be urged indictment, by appellant. The terms of the no been Act applicable. appear of the 47th to be rehearing motion for is overruled. OF
ORDER GRANTING STAY MANDATE. Presiding Judge.
HAWKINS, Henry Upon appellant consideration of the motion of the Hill, staying styled in the Allen for order the mandate above Supreme application an a cause numbered herein, it is for writ of certiorari Court United States be, is here here now ordered that said motion and the same now, granted, hereby this and it is ordered that the mandate .in cause, be, hereby, stayed Supreme same until and the pass upon application shall for Court of United States said Supreme a writ of herein to be made to said certiorari Court herein, Henry Hill, appellant provided, Allen behalf however, application Supreme is filеd in said said days ninety from and after within this date.
This, June, D. the 3d A. 1943.
ORDER OF ABATEMENT.
HAWKINS, Presiding Judge. appel- had
After the conviction been aifirmed granted lant a writ certiorari Court of petition Later -States. certiorari was dis- upon application appellant, juris- of counsel for missed thus diction this court re-attached. pend- known to the court that has died
It is made ing appeal, and same is here now abated.