Lead Opinion
Appellant was convicted of the theft of cattle, and given two years in the penitentiary, and prosecutes this appeal. The only question that requires to be considered by us is as to whether the court before whom appellant was tried was then holding a legal term. The record shows the trial of this cause to have been at a term of the District Court begun and holden on the 24th day of June, 1895, and which adjourned on the 2d day of July, 1895. The trial was in fact had on the 27th day of June, 1895. The acts of the legislature of 1892 (see, Acts 22d Leg., p. 58) authorize a District Court to be holden in Foard County on the twentieth Mondays after the first Mondays in February and August, and to continue in session until the business is disposed of. By reference to the almanac, under this law the Distinct Court of Foard County should have convened on the 24th day of June, 1895. But the laws of the legislature of 1895 (see, Acts 24th Leg., p. 34) authorize a District Court to be holden in the county of Foard on the seventeenth Mondays after the first Mondays in February and August, and to continue in session until the business of said court is disposed of. Said act took effect on its approval, which was April 1, 1895. This last-mentioned act entirely superseded and repealed the Act of 1892, under which the courts in said county were formerly held. While it is true that, if the court had met on the 3d of June, 1895 (which was the seventeenth Monday after the first Monday in February), it could have continued in session, and have been in session on the 27th day of June, 1895, when this case was tried, yet does it follow that, not having met on the day pointed out and authorized by law, and the trial having occurred on a day when said court could be legally in session, said cause was tried during a legal term of said court? We think not. The statute, as before stated, authorizes the holding of a term beginning on the seventeenth Monday after the first Monday in February, and the court must begin its session on said day; and if any contingency happens, that the judge of the court shall fail to attend on said day authorized for the opening and holding of said court, the statute provides a method by which a special judge shall be selected, so that there shr.'.l be no failure of the term. See, Rev. Civ. Stat., 1895, Art. 1071. The former statute on this subject was Article 1412, Pasch. Dig., which authorizes, in case the judge did not appear on the day appointed by law for the opening of the term, that the sheriff should adjourn the term from day to day for three days, and that on the morning of the fourth day, the judge having not appeared, the court should be finally adjourned. The act first quoted on this subject was evidently intended to and did supersede and repeal said last-mentioned act. It *382 does not appear in this case that any court was begun and holden on the day authorized by the Act of 1895, which was then in force. Doubtless the new law on the subject, although it had been in force some months, had not come to the attention of the judge holding this court, and he attempted to convene and hold a court under the former law, which had been repealed. In our opinion, the conviction in this case was had at a term of court not authorized by law. The court, not having convened when authorized, could not convene and hold a term at some subsequent day. Because the appellant in this case was not convicted at a term of court authorized by law, the judgment is reversed, and the cause remanded.
Reversed and Remanded.
Addendum
on first motion for rehearing made on part of the state.
This case was reversed at the Austin term, 1896, and it now comes before us on motion for rehearing on the part of the State. The motion for a rehearing brings in question the constitutionality of the law of the Twenty-fourth Legislature, changing the time of holding the District Court in the Forty-sixth Judicial District; it being contended that the law of 1895, if given effect from the date of its approval, which was April 1st, 1895, would be violative of Sec. 7, Art. 5, of the Constitution of the State of Texas. That part of said section claimed to be violated by the act in question reads as follows: “He [the District Judge] shall hold the regular terms of his court at the county seat of each county in his district, at least twice each year, in such manner as may be prescribed by law.” This is a nice question, and, if it was one of first impression, would be fraught with some difficulty of construction; but a-similar clause in a prior constitution was construed by the Supreme Court of this State in Womack v. Womack,
Motion Granted and Judgmsnt Affirmed.
Addendum
ON SECOND MOTION FOR REHEARING ON PART OF APPELLANT.
Amotion for rehearing was granted at a former term of this court, and the former opinion of the court reversed, and the judgment of the lower court affirmed. It again comes before us on motion for rehearing filed by appellant. The only question to be considered is the failure of the court to limit the purpose of certain impeaching testimony. The defense set up to the charge of theft was that appellant had bought the head of cattle in question from his brother, Alex Wilson. On the trial, Alex Wilson was introduced by the appellant and testified that he sold defendant a red heifer on December 24, 1894. (The State’s proof tended to show the animal stolen was a red heifer, belonging to another person, which was taken on said December 24, 1894.) On cross-examination of this witness by the State, he was asked if he did not testify in the grand jury room, at the last term of the District Court, that he had not sold or let his brother, Willis Wilson, have any cattle, and he answered that he had not so testified. The State was then permitted to introduce two members of the grand jury, who testified that said Alex Wilson was examined as to said matter before the grand jury, and they stated that said witness did state on his examination before the grand jury that he had not sold his brother, Willis Wilson, any cattle at said time. Appellant insists that the court should have limited this testimony to the sole purpose for which it was introduced, to-wit: for the purpose of impeaching the said witness, Alex Wilson, although not requested so to do, and no exception was taken to the failure of the court so to charge; yet it is insisted that this was fundamental error, and he cites us to Paris v. State, 35 Tex. Crim. Rep., 82; Maines v. State, 23 Tex. Crim. App., 576; Washington v. *385 State, 23 Tex. Crim. App., 336; Davidson v. State, 22 Tex. Crim. App., 372. The principle to be extracted from these cases is well settled in the case of Maines v. State, supra, cited by counsel, and we quote therefrom as follows: “The general rule is that whenever extraneous matter is admitted in evidence for a specific purpose incidental to, but which is not admissible directly to prove, the main issue, and which might tend, if not explained, to exercise a strong, undue, or improper influence upon the jury as to the main issue, injurious and prejudicial to the right of the party, then it becomes the imperative duty of the court in its charge to so limit and restrict it as that such unwarranted results cannot ensue; and the failure to do so will be radical and reversible error, even though the charge be not. excepted to.” And it will be found on an examination of the eases cited by counsel that from the very nature of the testimony it was, unless limited, calculated to injure the rights of the appellant. Besides these, there are a great number of cases on the same line. In some of them a charge is required, because there is danger of the conviction of defendant for some offense proved other than charged in the indictment. In other cases, while the evidence is admissible for the purpose of impeachment, it is calculated to be unduly used by the jury for some other purpose than as impeachment testimony. The converse of this is equally true; that is, where the testimony can be used for no other purpose than that of impeachment, it is not necessary for the court to limit the purpose of the same in its charge. See, Moseley v. State, 36 Tex. Crim. Rep., 578. The simple question is, whether the testimony which was adduced for the purpose of impeaching the witness, Alex Wilson, under the circumstances of this case, could have been used by the jury for any other purpose detrimental to the accused. If no witness but Alex Wilson had testified to the sale of the red heifer to his brother? the defendant, then the jury would not have probably used it for any other purpose than to impeach the witness. Alex Wilson having sworn on the trial that he let his brother have a heifer, which was taken and killed, proof that he had stated before the grand jury that he had not sold the heifer to his brother was in direct conflict with his testimony on the trial of the case. He was thus impeached, and the jury, under such an impeachment, would have been j ustified, if the other facts warranted it, in disbelieving him altogether. But the appellant was a witness in the case, and he swore positively that he obtained the animal taken and killed by him from his brother, Alex Wilson. Now, while the testimony of the two grand jurors was admissible for the purpose of impeaching Alex Wilson, and thus destroj ing his testimony, the statements made by Alex Wilson to the grand jury could not have been used for the purpose of impeaching the testimony of the appellant. The jury in this case may have used this testimony for both purposes—-uot only for the purpose, of destroying the testimony of Alex Wilson, but as evidence showing that in fact the appellant had not obtained the animal, as sworn to by him, from his brother. Let us suppose that Alex Wilson had not been a wit- *386 ness in the case, and defendant had sworn that he had obtained the animal in question from Alex Wilson, what Alex stated before the grand jury, whether under oath or not, would not have been admissible in the case, unless Alex was a witness, and then for the sole purpose of impeaching him. The State’s case is as follows: “That the heifer had been running on that range from a calf up to the time it was missed; that a witness saw appellant driving a heifer corresponding with that which belonged to the prosecutor, and that that heifer was slaughtered by appellant. No witness swears that the animal slaughtered by appellant bore the brand of the prosecutor. The boy who saw him driving it did not see the brand. Defendant himself swore to the same facts as his brother, Alex Wilson. Now, this was the issue—whether or not appellant had taken an animal belonging to the prosecutor. In support of this defense, he relied upon the testimony of his brother and himself. The State contradicted the brother, and the jury may have used this contradictory evidence for the purpose of showing that in fact appellant did not obtain the animal from his brother, and that the defense was manufactured. Under this state of case it was of vital importance that the court should have limited the impeaching testimony to its proper purpose, instructing the jury that they could only use it for the purpose of impeaching Alex Wilson, etc. We are of opinion that the omission in the charge of the court, as above indicated, was calculated to injure the rights of the accused under the circumstances of this case, and a rehearing is granted, and the judgment is reversed, and the cause remanded.
Reversed and Remanded.