Kincheloe v. State , 146 Tex. Crim. 414 ( 1943 )

The State has filed a motion for rehearing in this case, contending that the case should not be reversed and that no errors are shown by bills of exception 2, 7, and 9. Only the argument relative to bill of exception No. 2 impresses us as having any serious ground for the contention made. This argument is concluded by the statement that "When verbal service was given by telephone there was a compliance with the statute." The original opinion quotes the language of the statute relied upon. It is conceded by the State that Article 597 of the Code of Criminal Procedure provides that service on jurors must be made in person and that this "certainly means that by a parol or oral act the sheriff must approach the veniremen personally in order to comply with the law." This concession is warranted and will be the basis of our consideration of a subsequent act of the Forty-fifth Legislature, page 678, chapter 339, providing for an additional method of service for capital cases. This Act, brought forward as Article 2116e, Vernon's Annotated Statutes, is an amendment to Article 597 and is effective only to the extent that it specifically provides a change in the method of summoning veniremen.

It will be noted that in the first section of the amended act the service is to be made "verbally" or by registered mail. Neither the words "personally" or "in person" appear, and the absence of them is the basis for the contention by the State that the law is complied with when the summons is by word of mouth, whether in person or by telephone conversation. The argument in behalf of this contention is not without force. However, we have, from the same source, come to the opposite conclusion. If the first section of the Act stood alone, divorced from the history behind it and from the caption and emergency clause in the Act, doubt as to the intention of the Legislature would appear.

The caption to a bill measures the possible content of the bill, though it must be conceded that unless that part of the bill following the enacting clause contains all of the things set out in the caption, the wording will not be expanded by the language of the caption. The caption contains the expression "either in person, verbally, or by registered United States mail * * *." This definitely makes it possible for the Act to carry that construction, if in fact it does do so.

The State resorts to the emergency clause of the bill as an argument that Article 597, C. C. P. was so amended as to permit service by telephone. Again it may be observed that while the emergency clause frequently is resorted to for interpretative expressions, this may be done only in cases where interpretation of the language of the main body of the bill is necessary. If the language and purpose of the Act is clear and definite, this will prevail over and above clearly contrary expressions in the emergency clause. Texas Co. v. Stephens,103 S.W. 481, 100 Tex. 628; Keator v. Whittaker, 143 S.W. 607, 104 Tex. 628; Graves v. State, 6 Tex. App. 228[6 Tex. Crim. 228]; Lanham v. State, 7 Tex. App. 126[7 Tex. Crim. 126]; Ex Parte Murphy, 11 S.W. 487, 27 Tex. App. 492[27 Tex. Crim. 492]. The chief office of an emergency clause is to express a reason for suspension of the rules requiring reading on three separate days and to put the bill into immediate effect. Missouri-Kansas-Texas Ry Co. v. Thomason, 280 S.W. 325.

We quote from the emergency clause, as follows: "The fact that large sums of money are being daily spent to various counties of Texas in capital cases in endeavoring to have personal service on jurors, and the fact that frequently it is impossible to actually find the juror and make personal service upon him in time for the term of court to which he is to report, create an emergency * * *." We interpret this to mean that there is an imperative public necessity that an additional method of summoning jurors in capital cases should become effective immediately, and it was in the bill set out that it may be done by registered United States mail. It is inconceivable that they had in mind a person could be found by telephone and yet could not be found by personal service. The only remedy provided, in addition to that for other cases, is the registered mail. If the Legislature had meant to add the privilege of a telephone call, it would have been easy to have said so. To construe this as an implication would be inconsistent with the carefully guarded method by registered United States mail, which could only be resorted to with permission of the trial judge and under his direction. It is noted, too, that a return registry receipt is required. If the sheriff is to have the privilege of calling by telephone, at his discretion, then he certainly should have the privilege of doing so by mail, at his discretion. Unregistered mail would be as reliable as a telephone call to a large number of veniremen, whose voices no sheriff would be expected to identify. We cannot concede Article 597 Cow. C. P. has thus been modified by implication so inconsistent with the guarded methods carefully provided in the bill.

The State's motion for rehearing is overruled.