Ex parte Juneman , 28 Tex. Ct. App. 486 ( 1890 )

Hurt, Judge.

The terms of the Criminal District Court for Galveston County are limited as to time of commencing and ending by article 1502 of the Revised Statutes. That article provides that “said judge shall hold a term of said court in the city of Galveston, county of Galveston, on the first Mondays in the months of January, March, May, July, and November. * * * The terms of said courts may contiue four weeks, unless business be sooner dispiosed of.”

The first Monday of March, 1890, is made the first day, or the beginning day for the March term.

Applicants being indicted in the Criminal District Court of the city and county of Galveston, were placed on trial on the 24th day of March, 1890. The trial continued without verdict of the jury until Sunday morning, March 30, 1890, between the hours of seven and eight o’clock a. m., when the jury returned a verdict finding the applicants W. T. Allen, Henry Weyer, and Fred Koehler guilty of murder of the second degree, and Charles Juneman guilty of manslaughter.

On the same day, March 30, 1890, applicants moved in arrest of judgment upon the ground that no legal judgment could be entered, because the verdict was returned into court on Sunday, March 30, after the term had expired.

On the 31st day of March the motion was overruled and judgment entered and sentence pronounced.

Until placed on trial applicants were under bonds, which appear among .the papers in this case.

Believing the verdict and judgment thereon to be void, and believing that they have no appeal to this court, the applicants have presented to this court their application for the writ of habeas corims, seeking to have said verdict and judgment declared void, and to be released upon their bonds.

If these applicants have or had the right to appeal their case to this court, the writ will not be awarded. Does an appeal lie under the above facts? is the first question.

Preliminary to this, another question arises, which is, when did the term of the court expire? This question arose in Harper v. The State, 43 Texas, 431. Gould, Justice, says: “We are of opinion that the .two weeks during which the term might continue ended at 12 o'clock on the night of Saturday, March 20. The rule of the common law forbids any judicial act on toe Sabbath. (Citing Nabors v. The State, 6 Ala., 203; Barton v. The People, 3 Gillam, 368; Story v. Elliot, 8 Cow., 27.) The ivell established usages of the people and courts of this and the other States of the Union require that the word ‘week'be construed as embracing only the six judicial days of the final week of the term. If, however, we look to our statute alone, it is evidently intended that the court should end on Saturday night. Article 3150, Paschal's Digest, is, ‘If at the time a verdict is returned into court there be less than six hours remaining before the court must by law adjourn, it shall be lawful, and shall be the duty of the district judge to sit during the whole of Saturday night and Sunday for the purpose of enabling the defendant to move for a new trial, or in arrest of judgment, and prepare his case for the Supreme Court.' In thus providing for a particular case "in which the court may continue for certain purposes beyond the time it must otherwise adjourn, it is plain that an adjournment on Saturday night is intended."

This opinion and the authorities therein cited would seem to settle conclusively that the term ended at 12 o'clock on the night of Saturday, March 30. The verdict and judgment then being returned and entered after the expiration of the term of the court, could applicants appeal therefrom?

The authorities are not in harmony upon this subject—that is, there is .an apparent conflict. In Harper’s case the appeal was entertained; but the question was not raised.

In the Fuller and Wimberly case, 19 Texas Court of Appeals, 241, the verdict and judgment were returned and entered by a court in term time. So with the Lott case, 18 Texas Court of Appeals, 627; McNeese case, 19 Texas Court of Appeals, 48; Smith case, 19 Texas Court of Appeals, 95.

In Doss v. Waggoner, 3 Texas, 515, the judgment was rendered by the District Court at a time when by law that court had no power to hear and determine cases. Upon this state of case Chief Justice Hemphill observes: “The court had no jurisdiction to hear and determine causes at the time these judgments purport to have been rendered. There Avasin fact no court in session, and no judgments could by law have been pronounced, and consequently they are not only absolute nullities in the-ordinary signification of the term Avhen applied to judgments of courts, .having no jurisdiction over the subject matter or the parties, but they are. not even the acts of a court, and are, therefore, not susceptible of appeal or the subject of revision in an appellate tribunal. This distinction has been recognized in the cases of Hodges v. Ward, 1 Texas, 224, and vide 23 Pickering.”

These cases are directly in point—the distinction resting here: If the-judgment be rendered by a court, though absolutely void, an appeal will lie. But if the purported judgment was rendered when the court was not in session, the term having expired, such judgment would not. be the act of a court, and consequently not the subject of appeal or revision.

These propositions are evidently correct. Let us notice the last proposition briefly.

The term expired at 12 o'clock of Saturday night, March 29, 1890. From that time there was no court; hence no order, ruling, judgment, or sentence Avould be the act of a court, and could constitute no part of the record on an appeal. The motions in arrest and for new trial, and notice-of appeal would be void and could constitute no part of the record. Unless an order had been made in term time for that purpose, a statement of' facts could not be approved by the judge. This court would not hesitate to dismiss an appeal in the absence of verdict, judgment, or notice of' appeal given in term time.

We are of the opinion that the writ should be granted.

Ordered accordingly.

Judges all present and concurring.