*1 аppellant down together they followed stopped at the elevator her aisle and hose pairs of and took from her fifteen bag, hand her
that were concealed in bag.
or shoulder ob- Sweeney testified without further
Mr. value
jection replacement cost seventy-five cents hosiery appel-
pair, taken and that the hose custody and had
lant were which he hose of
control; appellant his give he did not permission take the hose.
consent or wrapped and the evi- hose were not ticket was found.
dence shows that no sales testi- Manager
Floor Garland White’s Sweeney.
mony Mr. corroborated that of sufficient
We find the evidence and overrule
sustain the conviction corpus was not
contention that delicti
established. judgment is affirmed. ROWLAND, Appellant, Blake
Omar Texas, Appellee.
The STATE
No. 28357. Appeals Texas. of Criminal
Court 17, 1956.
Oct. Appeal to Reinstate Motion
On Jan. 1957. April 3,
Rehearing 1957. Denied Rehearing Denied Motion
Second Oct. 1957. March Certiorari Denied
Writ of S.Ct. 540.
See 78
832 Hardeman, Foy, by appellant, Dor-
Runge,
alleged
Smith &
on or about the date
sey
Hardeman,
appel-
Angelo,
information,
B.
San
drove motor vehicle
upon
public
lant.
highway
at a
in this state
speed in
sixty
per
excess of
hour.
miles
Lake,
Snow, County Atty., Big
Bill
Under
stipulation,
it was shown
Austin, for
Atty.,
Douglas,
Leon B.
State’s
appellant
provisions
violated the
the State.
statute as
limiting
amended in
1941
speed of
motor
vehicles driven
WOODLEY, Judge.
public highways
827a,
of this state. Art.
8,
Ann.P.C.,
1941,
Sec.
Vernon’s
Acts
complaint and
The conviction is under a
47th Legislature,
506,
1, page
Ch.
Sec.
817.
an
driving of
charging
information,
al-
among
things,
public
highway
automobile
“at
leged
appellant
drove a motor
imprudent speed unreasonable and
public
in this state at
to-wit, miles
existing,
the conditions then
per hour,
of 90 miles
which was suf-
”
* * *
waived,
jury being
hour
A
charge
ficient to
a violation of the statute
court assessed a
fine.
$50
under the
prior
1941 amendment and
to its
transcript
appeal
contains no
bond
amendment
1951 and 1955.
ap-
appeal,
recognizance
though
on
Under
statutory
the rules of
con
pears
appellant
upon a
was released
struction,
amendatory
if the
acts of 1951
recognizance.
and 1955 were held to be unconstitutional
the circumstances this court
Under
they
repeal
provisions
did not
State,
jurisdiction.
without
Bell v.
137 Tex.
then existing.
812;
128,
State,
Cr.R.
Reid v.
general
It is the
rule that an
invalid
Tex.Civ.App., 289
S.W.2d
repeal
unconstitutional act cannot
a valid
appeal
is dismissed.
70,
134;
p.
statute. 39
Sec.
Venn
Tex.Jur.
State,
534;
v.
151,
85 Tex.Cr.R.
210 S.W.
Appellant’s
On
Motion to
Rodriguez,
State ex
Garza
rel.
v.
Tex.
Appeal
Reinstate
Civ.App.,
Further,
an amendment
in
act
is declared
valid
original
act remains in full force
DICE, Commissioner.
and effect. Consolidated Underwriters v.
Appellant
proper ap-
into a
entеred
Kirby
Co.,
Lumber
Tex.Com.App., 267 S.W.
peal
appeal
bond and the
is reinstated and
703;
Co.,
and State v. Standard Oil
will be considered.
313,
Tex.
rule every to his view that is entitled an act repealing a clause "Where pass day in this court court and to have *3 order to se- a later act inserted in upon appeal. opinion in his Prior operation, and its unobstructed cure court this could case not believe this in- Legislature not clear that is perform- would affirm without a conviction except up- act repeal the old tended to however, judicial That, ing that function. act new supposition that on the exactly happened In this what here. repealing place, its would take case, my brethren failed have not fall with properly held to clause pass upon appeal, they express- have part.” it is a of which act ly doing. refrained from so repeal expressly of 1951 did act The By appeal, appellant this that the claimed Section provided that act but the 1941 conviction not be was should erroneous and amended. the act re-enacted permitted stand, reasons, fol- for two (a) : lows this The statute under which intention do not think it was We conviction was unconstitutional obtained is general including the Legislature, void, did not (b) information act within the repealing clause law, because violation of allege a except upon the repeal the act of void. statute which it was based is be valid would supposition new act would place. To hold otherwise and take its My with- brethren affirm this conviction passing require us to conclude determining those contentions. out either of intention of it was the act of right appeal anything If the means the act in the event Legislature that all, appellant surely it means that is en- regu- would be no invalid there to have this court either sustain titled driven speed of motor vehicles lating the when those con- overrule his contentions state. public highways this court properly tentions are before this Legis- such was not We conclude that determination. lative intent. majority court The action of the may be appellant’s Since conviction passing affirming conviction without this рrovisions of the stat under the sustained ap- presented contentions in 1951 prior ute to the amendments It and inexcusable. peal indefensible pass necessary does not become deprives of his constitutional presented. Ex upon his contention herein appeal. right of Heartsill, 38 S.W. parte 118 Tex.Cr.R. part charging 803; 122 Tex.Cr.R. 2d Rotner v. obtained conviction was upon which this 98; State, 160 Gilderbloom v. S.W.2d reads as follows: Tex.Cr.R. “ * * * there unlaw- did then and affirmed. judgment vehicle, motor operate and drive fully Opinion approved by the Court. Chrysler A automobile at to-wit: imprudent speed un-
unreasonable to-wit, existing, the conditions der DAVIDSON, Judge (dissenting). hour, per was then miles was reason- greater than purpose This court was created for the public highway prudent, on a able and furnishing to one convicted of crime a Texas, highway being a might appeal tribunal to which he de- system and not sit- State legality as to the of that con- termination incor- the limits of an within uated viction. which the is neither sus- city was obtained and on porated or town validity tained an or- nor condemned. Its Commission, Highway State sustained, invalidity nor deter- minutes, had its attested. entered on der its statute, holding, good and traffic is neither mined, upon engineering nor bad. reason- investigation, speed limit prudent and safe able and My rely brethren upon the case Gilder zone at such time and applicable, bloom v. 160 Tex.Cr.R. S. hour, des- 60 miles place, W.2d as authorizing holding. their erected by signs identified ignated Highway Commission.” State *4 In the place, first I demonstrated the fallacy as I am concerned —of the —insofar Art. drawn information was The holding my in that opin- dissenting case P. 8, 1(a), Vernon’s Subsection Sec. ion Rowe v. Tex.Cr.App., 276 S. 346, Session C., Chap. Regular being Acts W.2d 296. The wrong, Gilderbloom case is 1951, will which Legislature, in the of 52nd ought not to However, be the law. the to as the Act be referred of Gilderbloom case not sustain does hold- the being as Appellant challenges statute the my ing of brethren in this case. the reason for unconstitutional void and In case, the Gilderbloom the offense was vague uncertain it is and indefinite and that the same under is, both 6 statutes —that Arts. 3 and reason violates that one under which the 1, Texas, conviction was ob- of Penal Code of and Article prior tained and the statute Constitution, upon relied 19, Vernon’s Sec. of the Texas sustain the words, conviction. other Ann.St., process of the the due clause allegations of the information charge United Fourteenth Amendment offense under either statute. Constitution; The creating act two that stat- States dealt utes with in that case delegation of differed is an unlawful the statute punishment in the authorized to violation of powers legislature assessed. of Such is not Constitution; true of the two 2, 1 of the statutes Sec. Texas here involved. act authorizes administrative suspend violation laws in of agencies to The statute under which this convic- of the State Constitution. (the tion was Act) had 1951 creates and validity information is chal- defines an entirely The offense different from reasons, charging lenged prior the same denounced in the Act of 1941. offense. in this case does not charge acts which would constitute a viola- con- My decide none of brethren tion the 1941 Act. They not the stat- tentions. do decide that information, ute, good, is or is or the Inasmuch my brethren upheld have not The con- subject urged. the defects or condemned the passed 1951 Act or upon the conclusion viction affirmed validity, I its express will my views is void—as contends if the statute subject length at but will content prior valid statute was —then there myself by saying that, my opinion, the Regular (Chap. Acts Session of the of 1951 Act is void for the reasons assigned 1941) which will Legislature, 47th appellant. Act which as the made referred mind, my To the statute under which this to do that which in- it unlawful —not conviction was obtained is invalid and a charged appel- this case formation prosecution not be conducted there- that which do lant did—but under. appellant actually showed case did. in this will, course, however, holding express my decides I abso- Of views on the theory nothing. which lutely majority Sec. of everything case: that in the Subsection if predicates the affirmance except sus- Act 1941to- was invalid save and is, Act the utilization clause, repealing then that clause conviction. tain the valid repealed and it Act As оf 1941. instance, Act of In the first supporting statement, quote objection as subject to the same Tex.Jur., Statutes, page subject 1951 was the Act —that where the controlling rule is as fol- stated legislative is, delegation of the unlawful lows : laws suspension of power unlawful and the legislature. “So than the where an agency act other declares its partial Act authorizes, invalidity does Act of shall not affect parts act complete sections, repealing destruction clause admin- authorizing operative unlawful, by remains although there made the remain- alter, der of change, act is istrative tribunals held to unconstitu- prior pleasure and without tional.” amend at their legis- act created notice unlawful I call attention to this further defect in lature. reasoning my brethren: In the state’s *5 Art.-.2, by prohibited pleading, indictment, legislature is or the information 28, Constitu- 1, “The offense must plain Sec. be set forth' in and Art. extending intelligible words.” Art. tion of this state subd. C.C.P. right mentioned. agencies the which exists very cogent reason Another C.C.P., requires “Every- me, ma- fallacy, thing
demonstrates should be stated in an indictment jority opinion. necessary prove.” which is 2 in Sections provides, of 1951 C.C.P., The Act specifies certainty fol- as 6 of Section Subsection allegation and of an indictment, fol- lows: lows : held Act is any portion of “If “Certainty; what sufficient.—An in- compe- a court unconstitutional dictment shall be deemed sufficient provi- remaining jurisdiction,
tent charges the commission of the be valid nevertheless hereof shall sions ordinary in offense and concise lan- portions portion or if the the same guage in such a manner toas enable a not been had unconstitutional held person of common understanding to Legislature.” adopted meant, know what and with that de- gree certainty give that will the de- with any in conflict “Any part law particular fendant notice of the offense hereby Act is provisions is, charged, with which he and enable repealed.” expressly court, conviction, pronounce on conceive how for me difficult It is proper judgment; and ín no case interpreted or construed may be language the words are ‘force аrms’ or ‘con- 1941. Act of repealing the trary to the form of the statute’ neces- sary.” valid, 1951 was Act of If the invalidated su- was, things, in all
Act respect- The rules with allegatipns invalid, of 1951 was Act If the perseded. certainty required ap- an indictment and the repealed because 1941was Act of ply also to information. Art. C.C. with the Act of conflict law P. repealed Subsection 3 of 1951. These statutes all become to the validi- material reference 1941,without ofAct here, Moreover, controlling because the 1951. Act of information ty of when, curve, ing going around a charged case a violation crest, not made hill travel- charged approaching when Act. The acts there Therefore, ing any road- winding narrow or 1941 Act. unlawful way, special for or when hazard exists my affirm this when brethren respect with pedestrians Act or other an offense as a violation of traffic reason they an information of weather do so without conditions; highway every complies statutes and in any with the manner event, speed shall be so controlled as above set forth. necessary colliding to avoid plead upon to- When was called with any person, vehicle, or other con- charg- case, in this it was to' veyance on or entering the 1951. Act of ing violation of the him with a compliance with legal requirements Nowhere, time, been called he at no duty persons of all due to use opportunity to defend given care. Act of having violated the against violating “(b) special he stands convicted Where Yet hazard exists requires conviction which compli- is that lower Act of ance with affirmed. subsection 1(a) here this Sec- tion, vehicle not in respectfully dissent. specified excess of the limits in this subsection or established as herein- Rehearing Appellant’s Motion On after lawful, authorized shall be any speed speci- in excess of limits WOODLEY, Judge. fied in this subsection or established *6 as hereinafter authorized shall be contention that a section of the In view prima-facie speed is 8 of amending 1941 Act of prudent reasonable and that it 827a, subject con to the same V.A.P.C. is unlawful: exception objection as Sec and stitutional Act, the fact 1 of the 1951 and tion “(1) Thirty (30) per miles hour in Tex. Court, in Hernandez 157 any business or residence district for discuss without Cr.R. vehicles; all ques considering the constitutional ing or “(2) per Sixty (60) miles hour dur- super Act raised, 1951 held tions ing daytime fifty-five (55) 8 1941 amendment of Sec. of seded per nighttime miles hour during the we V.A.P.C., have decided that 827a, we locations other than business or resi- validity question consider should except dence districts for all vehicles as under appellant’s vehicles, commercial motor truck- Act. tractors, trailers, or semi-trailers as 827a, V.A. 8 Art. Sec. of Subsection Act all defined motor ve- amended the 52nd as reenacted P.C. engaged hicles in this State in the p. Ch. reads in Legislature transporting business passengers part follows: compensation for or hire.” restrictions, person (a) No “Speed portions provide Other of the Statute highway at on a vehicle a -drive shall prima-facie speed types for lower limits reasonable and than is greater speed a excepted in 1(b), of vehicles Subsection then ex- conditions prudent pаragraph (2) above. to the actual and having regard isting, “Daytime”, “nighttime”, “business approaching dis- when hazards potential district” trict” “residence rail- are defined or a an intersection crossing in Subsection 1 also approach- the Statute and it crossing, when grade way speed hour, per speed great- of 90 speed miles lim- provided that the er prudent than was reasonable and altered forth therein its set existing. the conditions in Subsections authorized Legislature provided a 60 mile Com- Highway State 2 the In Subsection per hour speed provided maximum and has authority, whenever granted mission that driving a vehicle in en- excess of basis of upon the determine “shall speed shall any facie evidence that' investigation traffic gineering speed prudent is not reasonable and forth set hereinbefore prima-facie and is Legislature unlawful. The safe has also than is or less provided any any class exist found conditions under the vehicles excess (fixed such maximum place or intersection * * 1(b), Subsection paragraph 2) could not determine highwаy of a part Hence, authorized. allegation safe a reasonable and declare the State Highway Commission also had place, but at such speed limit determined that 60 miles hour was rea- Highway “State provided further sonable and added nothing authority have shall not Commission subtracted nothing from plead- the State’s forth rule set alter the basic modify or ing. by a Com- to authorize nor (a) subsection ve- any class of speeds for Minute mission question before us is whether the maximum values in excess of hicles (Art. V.A.P.C.) ve- class of forth hereinbefore set applied driving to the aof (2), paragraphs 1(b), in subsection hicles public this State at (3), (4).” per hour, in excess 60 miles imprudent was unreasonable and under the charging then existing, conditions is constitutional. convicted stands upon which Rowland Blake “Omar follows: reads as The statute is attacked as unconstitution- unlawfully operate and then and did al on ground that it constitutes an un- Chrysler vehicle, A to-zvit: drive motor *7 powers lawful delegation of Legis- the impru- and an unreasonable at automobile 2, lature violation of Art. the Sec. 1 of ex- speed the conditions then dent Constitution of Texas. hour, to-zvit, per ivas zvhich isting, 90 miles was speed than then and there Validity of appealed the conviction public high- prudent, on a reasonable by provisions is not affected the of the stat- Texas, highway being way prima relating ute to facie limits de- system and not situ- the State termined and by declared High- the State incorporated an within the limits of ated way Commission. High- city town and on which the State provision The statute contains a that if Commission, on by an order entered way portion of the act is held unconstitu- determined, upon minutes, en- had its by competent tional court jurisdiction, investigation, the gineering and traffic provisions remaining hereof shall nev- prima facie reasonable valid ertheless be the same as por- if the applicable, at time limit such safe portions tion or held hour, unconstitutional had place, 60 miles zone or adopted not been Legislature. designated by sign and identified erected Highway (Em- Commission.” the State alleged law have been violatеd ours.) phasis rests alone the act of the portion Legislature no action The italicized of the information the State Highway required, Commission charges the violation Subsection 1 of was nor Act, driving would absence such action 1951 affect automobile 838 uncertainty indefinite void for the were allegations of Under prosecution. 449, People Beak, 291 126 N.E. ness. v. Ill. Commis- Highway the State 201; 629, State, 141 Gallaher 193 Ind. mile v. 60 not determined had sion State, 1059; 347, N.E. was 29 A.L.R. v. than Smith or less “greater speed limit was 252, 943; 186 Ind. 115 N.E. State v. Gold had determined safe” reasonable stone, 405, 892; 144 had Minn. 175 N.W. See speed limit as the same and declared Cyclopedia also Blashfield’s of Automobile Legislature. Practice, Law and Sec. 5308. named, contention For reasons We are cited authority to no holding State 1951 Act authorizes the contrary and we have found none. suspend laws Highway Commission 28, the Constitu- violation of Cassidy, Commonwealth v. 209 Mass. passed on. will not be
tion of Texas 214, 216, Supreme N.E. Court of Massachusetts construed a similar statute constitutionality of the statute requiring jury give court or due it is ground questioned on аlso weight facie and the because unconstitutional void testimony coming from both the common- and indefinite. vague defendant, wealth and the but held the real decisions and with the be consistent To question to be whether great- opinions prior in the reasoning er than was proper, having required hold would Court we regard to the traffic and the use of the 1, above in Subsection rule set out the basic way safety and the public, the bur- without standing alone quoted, being den the commonwealth on to show indefi so speed provisions is that it was. construction uncertain and of nite This, it, as we understand is true under penal statute. stand as a it cannot of the Texas Statute. S. State, Tex.Cr.R. Russell v. Tex.Cr.R. 566; v. Parroccini W. Supreme The Massachusetts Court fur- 671; parte Slaughter, Ex 320, 234 S.W. ther held “in may some cases a defendant 26 A.L.R. 243 S.W. Tex.Cr.R. be convicted even if he has not exceeded Tex.Cr.R. parte Carrigan, 92 891; Ex rate named clauses 604; 115 Tex.Cr. Ladd 244 S.W. statute, may and in some he be ac- 1098; parte Cher Ex 355, 27 S.W.2d R. quitted though he have even exceeded' Tex.Cr.R. nosky, it.” accord with the latter We state- said, however, to be holdings are *8 Such ment, express ques- no on the authority in other weight of the against may whether one be un- tion of convicted State, 193 Ind. Gallaher v. jurisdictions. Texas statute who does not ex- der the 1066. 1062 and 29 A.L.R. N.E. prima question limit. That the facie ceed 1(b), Subsection provisions of Do the us, appellant having before admitted- is not speed limit of 60 miles maximum fixing speed in excess of ly at 60 miles driven speed any that providing and per hour prima hour, speed maximum facie limit shall be excess Legislature speed and at a limit fixed speed not reasonable is prudent than reasonable and greater unlawful, remove and prudent or existing conditions at the time under the basic rule set indefiniteness place. and 1(a)? This Subsection forth upheld by Indiana The statute the Su- decide. called arewe question of that state in Court Gallaher preme v. State, 141 N.E. 193 N.E. 29 A.L.R. other states have been statutes of Similar and in Smith v. Ind. they contention against upheld or person shall sufficient or 943, provides person endanger 115 -N.E. any property of another. operate a or motоr drive speed aat public in that state highway Supreme People Court Illinois, hav- prudent, or reasonable greater than is Beak, 201, 202, v. 291 Ill. 126 N.E. use of and the traffic ing regard upholding a statute almost identical with limb or endanger the life way, as to or so statute, the Indiana said: any person property of injure the speed of rate of provides if the only provision “If the of section 10 out- any public highway motor vehicle were its first sentence, might city, incorporated limits of side the some merit in the argument of counsel speed the rate exceeds village, town or that the construction of the statute is speed shall statute, rate of in the fixed subject conjecture. The section person prima facie evidence provides further speed the exact running at motor vehicle operating such if exceeded in various classifications is reasonable speed greater than rate prima localities shall be facie evi- traffic having regard to prudent dence law, of a violation of the and the endanger the way so as to and use plaintiff evidence of in error himself property of injure the limb life or clearly indicates that he was violating person. provisions of the statute as to at traveling which he was forbidding was construed statute just before the time he was arrest- at a vehicles operation of motor * * * ed the officer. hav- The statute than is reasonable sufficiently clear on way ques- the actual traffic use to the ing regard tions anyone involved to inform what speed shall be what declaring Legislature prohibit intended of five sets under each unlawful punish.” in the statute. out set circumstances holding Indiana the above supra, the cases v. Gallaher Supreme Courts of other the statute states is that a concluded that Supreme Court statute prohibiting penalty offense the driv- whole defined taken ing aof vehicle on the certainty de- to the at a by it with forbidden greater than may prudent, who read it know persons gree that having regard pro- to the traffic to be intended use of the exactly evil is what way, and specifying what fixes a standard hibited, shall bе facie unlawful person designated accused cir- guilt cumstances is not void for uncertainty. cause of the accusa- nature and know note; A.L.R. 1066 him, not invalid. A.L.R. and was against tion holding appears Such to be in accord with State, supra, the same court In Smith We reason. are aware of no authority to considered in its en- said that contrary. standard clearly fixes a of care tirety *9 operator; provisions that the We conclude by the that the of observed Sub- (b) fixing proving speed burden of section a 60 the State the placed on mile limit and any driving speed providing speed a that was at ex- accused in excess thereof set the statute and shall be facie maximum ceeding speed that the speed prudent proof of such not reasonable is made and fact unlawful, rather than absolute evidence the 1951 renders amendment and permit 827a, only to defendant re-enactment Art. serves guilt V.A.P.C. can, sufficiently show, applied that under all the cir- if he definite as to one who cumstances, speed at which he drives a vehiclе at a was in excess of 60 imprudent, per unreasonable or not miles hour on driving highway was DAVIDSON, (dissenting). vague Judge it is State. The contention void, indefinite, is overruled. and therefore Because this conviction a stat- rests unenforceable, being ute that is void and over- rehearing is Appellant’s motion for violation of the Constitution of this ruled. process and of the due of the Four- clause teenth Amendment Federal Constitu- Appellant’s Motion Second On tion, agree I cannot to this affirmance. Rehearing for
I respectfully dissent, ad- enter this as an dition to that heretofore filed. MORRISON, Presiding Judge. appellant offense was this majority in the concurred The writer charged convicted in the as rehearing. motion opinion appellant’s on follows: light study in the mature After more concluded brief, I have appellant’s “Omar Blake Rowland did sound- question as to is a there serious unlawfully operate drive a contained. reasoning therein ness of to-wit, Chrysler motor vehicle, auto- do, however, convinced I remain impru- mobile at an unreasonable and aрpellant’s motion opinion on original dent under the conditions then disposed of properly appeal reinstate the to-wit, hour, existing, per 90 miles case. then and there a pru- than was reasonable need opinion, this Court such stated As dent, public Texas, on highway constitutionality of the pass upon the not highway being part State stipula- because, under present statute system and not situated within record, it is established fact in tions incorporated an city limits of a motor did drive appellant Highway town which the State on per hour sixty miles speed in excess at a Commission, by order entered on its County, Reagan highway in public upon a minutes, determined, upon had engi- amended 1951 as Act of If the Texas. neering investigation, and traffic ques- (and constitutional ap- myself), then the commit not do tion applicable, safe limit provisions of under pellant guilty place, time and zone to be 60 miles hold- in which such If, in a case Act. hour, designated as and identified necessary, Act of ing became by signs Highway erected the State un- held to be 1955 should amended in * * Commissiоn constitutional, would still then the 1941 Act. guilty allegation charged That such a violation P.C., of Sec. Vernon’s views are Judge WOODLEY’S 1955, is, mind, my 1951 and amended rehearing, but he opinion on in his stated subject to debate. that if the amend- writer with agrees article The aforesaid will hereafter be void, the con- 1955 are of 1951 ments merely 827a. referred prosecution upheld as a should viction Judge held judgment We so Act. the trial court was af- by majority firmed of this court original on on submission DICE’S Jan- adoption uary opin- departed view. from that have *10 DICE ion of Commissioner of this court. predicated affirmance therein motion for The rehearing second Appellant’s proposition if Art. 827a the that was void is overruled. statement, as insists— The that appellant of correctness and unconstitutional—as court, prior and in 1941 shown this the decisions of it existed as then Art. 827a this why in 1951 one thereof reason number amendment furnishes prior the to and prosecution statute this and unenforceable. void the basis for furnished predicated conviction could be the the of The facie feature upheld that statute. statute Judge which WOODLEY predicates DICE utilized holding cannot opinion Commissioner his of itself, not further that need make valid statute is void. speaks I for therein. holding the detail position: in This court itself this finds dissent, judge which One that (WOODLEY) holds filed holding I To 827a it it existed presently as exists and as speaks for itself. also prosecution at the a valid time of this opin- the DICE the affirmance To the statute it in so far makes unlawful as rehearing. for ion, appellant motion filed a operation high- of a motor over of rate ways this of state 3, 1957, rehear- April for the motion On validity of sixty than this miles hour. The majority of ing was overruled provi- 827a not tested as opinion by Judge in an court WOODLEY. (MORRI- judge Another sions thereof. set opinion therein That reasons soundness SON) agree for does motion overruling forth for opinion and refuses WOODLEY I need the themselves, speak rehearing for therein, for the reasons affirm this case holding. not here detail Rather, affirm- assigned. agrees to the he To the for overruling motion order his ance the DICE assigned for in the reasons rehearing, appellant motion filеd his second present opinion, which if the states rehearing. prosecution con- statute be invalid (cid:127) viction a violation could rehearing That sustained second motion for is to- of Art. in 1941. 827a existed day opinion by Presiding overruled third, here- (the writer judge MORRISON, remaining Judge in which he refuses ap- of) agrees contention of the to an with agree affirmance the conviction for exists pellant presently Art. 827a reasons by Judge ascribed WOODLEY is void and it vio- unenforceable because opinion April but does his lates Constitution laws agree affirmance and the Federal Constitution. for the assigned Commissioner reasons 30, 1957, opinion January DICE in his It my conviction that exists conviction could be holds valid unlawful makes had under it existed in 1941. Art. 827a as charged against appellant acts opinions To the I correctness of those information in case and for which agree. agree, do can not do how- he has been convicted. ever, to that of Judge WOODLEY’S only thing majority of this says: wherein he court here decide the judgment “To consistent with decisions opin- conviction should be affirmed. The reasoning prior opinions ions delivered are authoritative this Court be required we would that purpose. hold out basic rule set quoted, very inception Subsection From the standing above this case insisted, alone both in and without the trial here, provisions is so indefinite and court of Art. 827a is void unenforceable of such uncertain that it because it construction vio- and is contravention penal cannot stand lates as a statute.” of the Consti- *11 n holding required express That
tution
of the due
and laws
this
of
state
provisions
Code,
process
Constitution.
clause
of Art. 6
of
Federal
of
Penal
our
which reads as follows:
passed
court
not
This
has
“Unintelligible
operative.
which this
contentions.
under
law not
The statute
upheld nor Whenever
appears
provision
neither
it
conviction
occurred is
a
penal
court
until this
indefinitely
condemned. Unless and
law is so
contentions,
passes upon appellant’s
he has
framed or of such doubtful construc-
appeal as
tion
right of
understood,
been denied the full
can not be
of
guaranteed by
laws
either from languаge
the Constitution
in which it is
expressed,
be
ought to
this state.
contentions
His
from some other written
stat-
law
either
or overruled.
If the
State,
penal
sustained
law shall
so;
say
regarded
ought
ute
is valid
wholly inoperative.”
this court
as
say
if it
invalid it
is
so.
should
The following authorities sustain and
one
support
court
said
fact
has
this
rule
parte
stated: Ex
Cherno
itself,
way
a
is,
sky,
or the
within
sufficient
Tex.Cr.App.,
673;
Ex
conviction,
parte
be-
reversing
reason for
this
Slaughter, 92
Tex.Cr.R.
S.
no man
a
cause
should suffer
W.
891;
26 A.L.R.
State,
Griffin v.
this
majority
under
statute which a
of
a
Tex.Cr.R.
494;
218 S.W.
v.
Cinadr
say
cannot
State,
court
valid and enforceable.
is
64;
Tex.Cr.R.
300 S.W.
presumption
Reasonable doubt
of Dockery
and the
allow
be contradicted.”
to
state,
fix
a
definite
limit in this
term, applied
could very easily
The
There
definition of
have said so.
above,
court,
would
keeping
legis-
with the
have been
in
no occasion for the
lature
and is
:
to
follows
or
have relied
intendment
supposition
accomplish
purpose.
to
So
“ ‘Prima facie evidence means evi-
the fact
legislature
fix a
did not
which
dence
is sufficient to establish
definite
limit evidences its intention
fact,
rebutted;
evidence
unless
not to do
prima
so. The
facie evidence
which,
unexplained,
standing
alone
provision
gven
cannot be
proposition
would maintain the
interpretation that
it fixes
limit
a definite
support
warrant
the conclusion to
at which
may
operated
motor vehicles
”
which it is introduced.’
this state.
contrary
To so hold would be
legislative
to the
intent
Ratliff
See:
would consti-
v.
Tex.Cr.R.
judicial
tute
legislation.
343, 344,
Uptmore
116 Tex.Cr.R.
Being evidence, only, rule construction there to be given prima must exist to some fact facie evidence issue which feature might operate is, the rule statute —that necessarily which whether isit presupposes, rule of evidence case, or criminal an accusa- substantive law denouncing tion under a valid statute and offense —the fact issues remains joined. the legislature delegated fact has to ad- ministrative agencies tribunals pointed out, As have herеtofore right prima to fix the facie evidence rule. is, here, no valid statute regulating It vehicles, is obvious that of motor such legislation therefore is di- rectly prosecution. contrary there could exist and violative of Sec. of Art. II of the state, Constitution of this facie rule evidence must be prohibits legislature from dele- here construed as an act legislature gating persons to other or tribunals its prescribing applicable rule of evidence legislative powers right make, and the prosecutions arising under void stat- promulgate, pass laws. Under that con- ute. provision, stitutional the legislature and the legislature, only, power has the statute, attempting define an and author- ity forth, statute, set void, no occasion or the acts that offense, being fact unlawful in prescribe this state and whereby the therefore arise could issue rules of evidence applied rule could be an accused is to evidence be tried for his liberty in to. the courts of this resorted or state. give to ascribe To Here, legislature performed making the effect a law rule function legislative a statute which exercised its making valid would powers. contrary, To the contrary delegated would be it has be void otherwise be here utilized and cannot right tribunals to administrative prosecution: upon by in this relied the state function. legislative perform that confer legislature to attempt information in will be It noted Commission, commission- ' Highway things, that alleges, among case bodies governing courts, and the ers “ * * * *14 Commission, Highway the State prima to fix the right and towns the cities minutes, by upon its had an order entered in vio- contrary to and speed limits facie determined, engineering .upon traffic state. the Constitution of lation investigation, prima facie the speed appli- and safe limit to delegated legislature When the cable, place, at such time and zone or to right to the upon tribunals other conferred hour, designated 60 miles and identi- it rules evidence change the by Highway signs fied erected the State those it authorized promulgated, had * * Commission had very it suspend laws the to tribunals *.” destroyed every doing, it passed. sо Under allegation, the state relied facie evidence prima to vestige or reference prima speed upon facie rate fixed were tribunals other statute. When upon legislature prima but facie prima power change delegated to speed Highway Commission had sur- rule, legislature evidence facie fixed, applied, par- designated power authority to its rendered all time, zone, place. ticular or thereby legislate thereon, nullified having alleged The information say attempted everything to it or has Highway prima Commission had fixed the thereon. speed authority facie limit under the con- provision our Constitution Another it, upon statutory prima ferred facie I, has been here violated: speed limit is not here invoked and fol- Constitution this state reads upon by be relied state sustain this : lows conviction. suspending laws power of “No another and There is additional reason except shall be exercised this State way Art. 827a is invalid: Legislature.” I,Art. of our State Constitution upon ad- legislature conferred When and the Fourth Amendment to the Federal unqualified and prohibit tribunals expressly ministrative Constitution unreason- prima reduce the facie right to unlimited able searches seizures. Titles 5 and it and conferred authorized speed limit, C.C.P., Ann.C.C.P. et Vernon’s arts. 212 right not tribunals seq. seq., 304 et any statute it had suspend destroy legislation legislature By special has speed limit fixing the maximum written peace officersto authorized arrest for traffic rule, prima facie evidence within the violations, warrant, without and this court provision of of the above direct violation applies held that such statute has our Constitution. right violations. The to arrest carries with assigned, there exists no reasons For the person right to search under Art. evidence rule facie State, Tex.Cr.App., Richardson vehicle. v. legislature or 844; defined fixed nor has the State, S.W.2d Brown v. 159 Tex. speed at a which motor definite statute Cr.R. S.W.2d 261. operated high- over vehicles peace decision authorizes a statute No ways of this state. an arrest or search make officer belief, that an suspicion, why another mere reаson There is committed; an arrest or been rule, statute, as fixed in the offense policeman, patrolman, A prohibited. highway conditions search under constable, sheriff, peace 363, 115 S.W.2d State, 134 Tex.Cr.R. Gill v. 923; being officer observes an automobile driven Tex.Cr.R. State, Burton v. public 180; Tex. this state. He 215 S.W.2d Moore driven, 550; being Giacona v. decides that the automobile is S.W. Cr.R. conditions, existing Tex.Cr.App., under then at a pru- than rate is reasonable and here, apparent Applying those rules it is upon his dent. is based Such conclusion making is a valid that if Art. 827a opinion and sees belief because of what he laws a violation observes. The actual rate operate vehicle at an a motor for one traveling which the automobile is is not *15 imprudent then a unreasonable and controlling, enters into the essential but may upon peace arrest and search officer in utilized matter so far it belief, suspicion because the mere opinion forming officer in his the by speed law de- existence of an unlawful opinion belief. of that and be- Because opinion, supposition, pends, first, the Sub- lief the officer concludes that officer, and, peace idea, belief of the 827a, 1(a), being section is violated opinion, supposition, secondly, the presence, proceeds in so he to arrest his peace that officer the idea, and belief of the stop ordering the driver him the au- to that a violation of statute. facts constitute automobile, By stopping the the tomobile. indefiniteness, as thereby is void for because is If Art. 827a driver is arrested he contend, could not not I it and would under restraint officer. Art. medium for an arrest. gives then the driver furnish C.C.P. The officer showing charged a ticket that he is with 827a be construed as valid If Art. having by driving violated Art. 827a at an vehicles, speed of motor regulating the law imprudent speed. unreasonable or an because it is void authorizes then appear a designated driver is to in cited suspicion search mere arrest and that court to answer accusation. At of our constitutional belief, in violation appears in designated time the driver сourt guarantees. tes- to answer the accusation. The officer operation conviction a denial of Does this show due to the of the automobile tifies as process? time, existing and the conditions at and, upon predicate, expresses that often said have that the mean- The courts opinion driver operating was process incapable being is ing of due impru- automobile at an unreasonable and expressed a fixed or certain definition. speed. that, The driver insists in dent his that definitions of term and one One opinion, driving he was the automobile in entirely to here conceive suffi- which I a reasonable and manner and that process a denial of due cient is justified opinion. officer was his fundamental when fairness occurred neces- concept very justice sary has not to the testimony, presented Under issue Newman v. 148 Tex. been observed. opinion of is whether the the officer showed S.W.2d and authorities Cr.R. unlawful act on the an of the driver. cited. words, is there a valid In other law in this mind, ques- definition With says the acts the driver process a denial of due is exam- tion the officer testified were unlaw- ined : only way by which it ful? could be such a law does exist would be is, my mind, picture a clear Here law, adopt, opinion happened this case what idea could what the officer. time under Art. 827a: happen at hesitancy if this saying the case have no trying jury judge or the But the of- (in. case) evidences opinion of the the instant agree- with do not them, necessary to the that fundamental fairness They, ficer. or either cases, concept very justice in all criminal testified opinion that the facts exists, process longer due of law no conclusion his do warrant officer necessary for none of the elements thereto automobile operating the the driver Un- speed. shown imprudent to exist. unreasonable the driver acquittal of opinion, der that my It that this conviction commit did not he required, not because every principal proc- in violation of of due testified officer which the acts ess. judge or opinion of the because, unlaw- -made law whiсh was no jury, there By legisla- passage of those acts. ful longer ture showed it no desired to power regu- exercise its constitutional that, Thus it demonstrated late the rate of at which motor ve- tribunal individual procedure, the last operated high- hicles were over authority to deter- having upon or called state, ways thereby because op- has been when a motor mine *16 upon transferred conferred to and certain rate imprudent or at an unreasonable erated power tribunals of state and au- this that solely determination speed makes that of thority. viewpoint, idea, and opinion, its from his or state. law of this any written and not from only whereby legis- The lawful means a statute state in this we have So pow- lature could have been relieved that solely of one a conviction authorizes which er, however, people a vote of the idea, opinion, private upon the and alone amending of this our state Constitution. person who surmise, supposition of one or people place legis- until Unless аnd what the law announces thereby not power laws in tribunals lative to write that the facts determines is but also power legislature, that other than viola- opinion show a he bases that which duty remain fixed in legislature. The law. tion of legislature could not have been relieved of power enacting Art. 827a. exist- a condition against guard To state, our Penal Code Art. 3 of ing this purpose intent If it was the as follows: reads It was enacted. give passing legislature, by written be affixed must “Penalties peace state officers in this the un- to all penal system order law. right arrest a qualified unlimited may be com- in this State in force law state, person Search his citizen system itself, no and that plete within possessions, violating for unwritten, laws, or written foreign laws,' it have—in all fairness —so should to, it is declared appealed may be that reasonable men framed the punished for shall person no difficulty in understand- no would have had omission, same unless the or act which knowing the acts were made ing penalty is offense, and a penal amade unlawful. written law thereto affixed this State.” require- meet those 827a does an arrest and statute, Rather it authorizes has held ments. this court Under statute, penal void requires that a law search process due conclusion, suspicion, predicate as a mere notice give must officer, in arresting clear violation thereof. Ex a violation punishment against guarantees constitutional of our Leslie, S.W. 87 Tex.Cr.R. parte and seizures. searches principle deep-
There is a of law that is it is great a case of moment and concern jurisprudence: jurisprudence seated in our that of to the state and its review, judicial citizenship, doctrine which means guarantees because certain power lies exclusive- to enact laws mandates contained in our Constitution gov- ly legislative they with the branch our either longer effective or no exist. ernment, power determine while the In writing opinion it dissenting exclu- whether laws are valid lies my purpose preserve, to do what I can to sively gov- judicial with the of our branch protect, and defend the Constitution of this ernment. аnd, pur- in the furtherance of that pass pose, legislature right laws I make apology expressing my no no length. violate constitutional mandates. views at approve right
The courts have
uphold a law that violates Constitu-
tion. expediency, purpose, the rea-
son ex- for the enactment of laws rests
clusively legislature. with the power judiciary to sustain or has no Anthony REYNOLDS, Appellant, expedient Lewis to do a law because defeat might so or because of benefits sustaining legislation result from Appellee. Texas, The STATE of might result from a destruction evils *17 No. 29714. thereof. Appeals Court of Criminal of Texas. duty performance here im- In the April 9, 1958. validity posed upon determine the me to constantly principles 827a, these my in mind. the conclusion that Art.
Having reached effect, force and I void and of no
827a is declare, my obedience to oath
must so judge.
of officeas expedient and a matter
While importance to
of considerable speed motor vehicles be limited yet regulation must regulated, legislature a valid law.
come dissenting opinion
I realize value. About the authoritative
no thereby are the are benefited
persons who helped, who would be if and those
writer expressed herein were control- views
ling. is a that this case of realize further measured when great concern but, inflicted, when measured punishment determined, presented questions by the notes a motor operation uncontradicted, is sufficient in but, prudent, than carry jury the case jury case to made unlawful when rather, to sustain a verdict favor of particular time and under at a committed