*1 D. v. The State. G. Snow 19119. Delivered November 1937. No. Rehearing March denied states the case. Waxahachie, and Stovall, L. D. and H. R. both of Johnston Normangee, appellant. Bennett, Bennett & Swanson, Tyler, curiae. F. G. amicus Moody Austin, Black, Dan and Charles L. both of amici curiae.
Lloyd Davidson, Attorney, Austin, State’s of for the State. Christian, burglary; punish- . The offense is ment, penitentiary years. confinement in the for two place Refining The Company business of in the Gulf Ennis, Texas, burglarized night September was twenty-two lubricating cases of oil taken therefrom platform just building. and set on the outside the The entrance by breaking was made Immediately a lock on the front door. after the house had been entered officers went to the scene and nearby bearing found an automobile license No. F-63-311. Also there was a Appellant trailer attached to the car. came out of patch pulling up cotton his trousers. He stated to the officers gone patch he had into the cotton answer call of nature. gotten Further he said that he had lost and had turned off the highway up burglarized building; that, the dirt road toward the trying in around, got to turn his car in stuck the mud. One they approached burglar- officers testified that when building “running ized some one came down the cotton rows from the door of party the warehouse.” This was identified as being appellant. Appellant was arrested Houston. A search of his automobile plate disclosed that he had a license in the car, bearing No. by 399-002. An effort had been made some one burglarize place to pany Refining of business of the Gulf Com- nights
two or three before. At that time an officer proached bearing and some one fled an automobile license Shortly No. burglary 399-002. fingerprints after the were taken lubricating from the cases of platform. oil found on After appellant fingerprints they was arrested his were taken and corresponded exactly prints with the taken from the cases of Shortly appellant oil. after his arrest made a written statement in which he said that he was not in Ennis on the occasion of However, burglary. upon appellant the trial admitted that burglarized building he was near the at the time the officers approached. denied, however, He that he had entered the build- ing lubricating and taken the oil. agree are appellant’s
We unable to contention that fingerprints may evidence is insufficient. While not conclu- identity individual, sive as to the of an as stated this Court (2d) Davis v. present case note is to proved by be taken of the additional circumstances entirety, and which we have hereinbefore forth. In its set requirement we think the is sufficient meet the evidence the law circumstantial evidence. appellant’s
There is no merit contention court jury solely relied should have instructed State gave adequate The court a correct and circumstantial evidence. charge subject circumstantial evidence. on judgment affirmed.
The foregoing opinion Appeals has the Commission been examined of the Court of Criminal approved by the Court. FOR ON MOTION REHEARING. *3 rehearing appellant his for . In motion Hawkins, question
seeks to raise and this the have Court determine the of Judge Judge eligibility Harry of N. Graves to hold the office of of the Court of Criminal of Texas. actually judicially, (a) consequence know in that of We Judge vacancy
the death of the late O. S. Lattimore a occurred Judge Court; (b) discharging in the duty of office of this the that in imposed upon (Article 4), him the Constitution Sec. Judge appointed (c) the vacancy; Governor to fill the Graves Judge that holds a commission Graves from the evi Governor dencing office; appointment his to the (d) that he has taken engaged discharging official oath and is office; (e) now said duties of Judge that a Graves was of member the House of Representatives Legislature State, of the 45th (f) of the that Legislature Judge of which passed Graves was a member Judges courts, a including law which raised the salaries of of the Appeals, Court of Criminal that (g) Judge Legis for the term which Graves was elected to said 45th expire Tuesday January, 1939; not until lature does the 2d pro that Article (h) Section of the State Constitution part shall, Representative vides in as follows: “No or Senator during eligible may elected, the term for which he to profit of civil office ated, under this which shall have been cre may of
or emoluments which have increased dur been ing such term.” upon provision quoted
It is of the Constitution last above Judge appellant that that bases contention Graves in- is eligible hold the duties of he to which is now dis- charging. strong appeal importance presents for matter a expression upon question, our the merits of the views eligibility power if to determine the
but this Court is without Judge any expression amount to thereon would not disposition adjudication question, we have no attempt jurisdiction a which we do not have. the exercise of Judge evidently prompted the from This same idea statement Davidson found in Marta et al. v. 81 Texas Crim. attempted appellant that case a motion rehearing Judge question Harper for to raise a Judge Court, being as a of this to function claim that Judge had the office. his acts vacated Davidson dissented on regarding judgment, affirmance of the but the attack Harper “I from hurried review of said: believe the motion of sitting appellants disqualify Harper in this mo- that as member of this I am tion Court not Any might to decide that matter. conclusion I authorized reach by judicial I could not enforce order or decide or mandate. This try as a court can not one of its members for breach of duty, supposed duty.” or breach of present It that question is certain effort to raise the eligibility by appellant in his motion for re- hearing holding not is a collateral and a direct attack. The quite jurisdictions is the courts uniform all such may collaterally. question necessary, raised It not be not how- go ever, beyond our own courts. judge
“It is settled law to the office in may collaterally.” he functions not be attacked which 25 Tex. *4 State, 245; Rep. 134, 83 Lowe v. Texas Crim. Jur. 201 S. W. State, 986; Rep. 135, 323; Marta v. 81 Texas Crim. 193 S. W. State, (2d) 798; Germany State, 3 S. v. W. Hamilton v. 51 Tracey, 217; parte 538; Hagler Ex 93 S. W. v. 552, (2d) 653; 31 S. 116 Texas Crim. W. Bennett v. Rep. 231, 197; Call, parte Texas Crim. 181 S. Ex 78 2 W. Texas cited, App. reviewing 500. In the case last many after Ct. au- general thorities, said: “It White rule that the title judicial of a office impeached of an incumbent can not be col- indirectly, that, laterally and and while possession he is in discharging office, ordinary functions, its the his official acts * * parties as to all are conclusive interested *. The result that, all the authorities seems to in matters which con- public, the (he being officer’s title to his cern office duties) questioned its can not exercise of unless in a direct having object proceeding for its contestation of his the office.” to hold
267 Tracey Germany parte (supra), quoting In from Ex v. State (supra), “The whole of de officer is founded doctrine facto policy necessity, protect public and and indi- order viduals, they may where discharging involved the official acts of become persons being law- the duties without ful officers.” following
Upon subject we collateral attacks cite the courts, cases from our civil which are in own accord Governor, with the decisions of our own Court. Aulanier v. 1 653; 629; City Johnson, v. Texas of Christine 255 S. W. Broach Garth, 594; Castleman, v. 50 S. Williams v. 112 Texas Supreme S. W. 263. In the last case cited the purpose Court reality said: thé suit of the was in “While appellant’s involved, determine to the' office as well as office, appellee actual existence of the made no claim to the " occupied by appellant. case, being office Such the state of the ineligible, if appellant remedy prevent was the exclusive his usurpation occupancy or unlawful quo office was warranto.” Supreme decisions United States rulings
are in accord with the parte Ward, of the Texas courts. See Ex S., 765; 173 U. S. 43 L. Ed. McDowell v. U. 596; S., parte 159 U. S. Ball v. U. U. S. 118. Ex Ward having appears it been Ward tried convicted in the by Judge presided Meek, challenged court Edward R. over judgment by ground corpus habeas Meek’s appointment invalid, to the office was in that he had been pointed by while President the Senate was in session appointment reviewing had not his been confirmed. After decisions, the said: “The result court of the authorities is that acting person authority, color the title even if he good point law, collaterally be not attacked, can officer not be acted, least, Meek color, and as at under such propositions on involving we not enter discussion of can to the office held.” title holdings reflecting the courts in juris- As the various copy following United we dictions over the States excerpt J., pages 932 and from 33 C. Sections 13 and omit- inapplicable: ting parts which seem judiciary those “The are *5 authority try right and determine invested judge inquiry political, is not a judicial, to office. a Such but special statutory provision absence of some question. only right by State; questioned can and it this be can not Quo proceeding. proper in a collateral warranto is the be tested * * * right his office. judge’s a proceeding to test in which except parties judge jure as to all judge de A de facto is a office, are acts, he is ousted before and his official to hold binding public. His persons and the on third regularly only proceedings, instituted questioned office can be provided party, form purpose, to which he is for that * * * proceeding. law; in a collateral by it not be attacked can acting judge in- although person is apply, as The rules capable irrespective holding question and * * elected, Many properly authorities will he was whether text, supporting the includ- in the footnotes collated be found Bednar, ing 18 N. D. 121 N. quotation from State v. has for rule rule of the follows: “That such text] as [the policy apparent public and sound must be a wise its foundation inevitably confusion all, intolerable would its absence result.” holding Judge
Judge unquestionably the office of a is Graves by appointment dis- of title and is under color of this Court only way charging office. The in which his the duties of such may proceeding in- determined is a direct the office be title to competent jurisdiction. purpose in a court of for that stituted asserting by party title to the office such If one else was some against question. could raise the a direct suit Rhodes, only Texas 348. The other method is McAllen v. proceedings. jure quo In no event can a warranto de direct claiming judge judge, the office or a de facto color officer, actually performing the duties pointment, and of such successfully challenged ousted, except acts or his official be party. proceeding he is a proceeding to which Such a a direct originally, in this filed could not could not be be by appeal brought because such an to this Court action would proceeding to test incumbent to hold a civil be jurisdiction. this Court has no office of which Article a civil jurisdiction fixes the of the Constitution of said Court Section of Criminal “The Court shall have as follows: jurisdiction with the limits of the coextensive State in all crimi- grade, exceptions with such of whatever nal cases under regulations may prescribed by as law.” such position appears Appellant to take the if ineligible as a of this Court that all fact acts of the He asks that his void. motion for would be court granted, “abeyance a decision of matter held in or until reorganized shall as this Court have been time and consist such eligible Constitutionally members.” Section 4 of of three Article provides that: “The 5 of the Constitution Court of Criminal *6 Judges, shall consist of three two of whom shall quorum, constitute and the concurrence of two shall necessary to a decision of said court.” If the Governor for some ap reason had refrained from pointing anyone vacancy to the caused the death of Lattimore, remaining Judges the two could have functioned they disagreed unless agreement had in some case. There has been no dis appellant’s case, and in no event has he been injured by presence Long the Court. v. 59 Texas Crim.
The motion for is overruled. Presiding Judge Morrow, . I concur
Judge Hawkins. Hawkins, participate did not in de- . ciding rehearing. the motion for
APRIL
Charlie Brooks v. The State.
No. 19532. Delivered 6, 1938. April