Brown v. State , 32 Tex. Crim. 119 ( 1893 )

Appellant was convicted of murder in the first degree, and his punishment assessed at death.

It is contended, that the Act of the special session of the Twenty-second Legislature, organizing the Twenty-first Judicial District, is unconstitutional, because the Governor did not, in his proclamation convening said Legislature, designate this particular matter in said proclamation as a "subject" for legislation.

Article 4, section 8, of the Constitution, provides, that "the Governor may, on extraordinary occasions, convene the Legislature at the seat of Government, or at a different place in case that should be in the possession of the public enemy, or in case of the prevalence of disease thereat. His proclamation shall state specially the purpose for which the Legislature is convened." It is further provided by article 3, section 40, of said Constitution: "When the Legislature shall be convened in special session, there shall be no legislation upon any subject other than those designated by the proclamation of the Governor calling such session, or presented to them by the Governor; and no such session shall be of longer duration than thirty days."

The proclamation, among other things, convened the Legislature "to reapportion the State into congressional, senatorial, judicial, and representative districts, and to provide for the election of officers therein." The judicial districts mentioned in the proclamation were those presided over by the district judges. A casual inspection of the proclamation renders this certain. That the authority to reapportion or reorganize the judicial districts of the entire State necessarily carried with it the power to reapportion any given number of such districts, is to our minds a self-evident proposition. The office of the proclamation is to designate the subjects, and not the manner or extent of legislation on such subjects. "It was not the intention to require the Governor to define with precision as to detail the subjects of legislation, but only in a general way by his call to confine the business to the particular subjects." Mitchell v. Turnpike Co., 3 Humph., 455; Devereaux v. City of Brownsville, 29 Fed. Rep., 742; Baldwin v. The State, 21 Texas Cr. App., 591.

1. That the Legislature may only enact legislation in part in relation to the subject mentioned in the call does not render such legislation invalid, nor is it necessary to the validity of such legislation that the whole subject matter should be acted on by the Legislature. The call includes the entire subject of reapportioning the judicial districts, and authorized "any and all such legislation upon that subject as was deemed necessary by the Legislature. It was not necessary, nor would it have been proper, for the Governor, in his proclamation, to have suggested, in detail, the legislation desired. It was for the Legislature to determine what the legislation should be." Baldwin v. The State, 21 Texas Cr. App., 591.

2. We do not concur in contention of counsel, that the object and purpose of the act are not sufficiently stated in its caption. It was not necessary to state in the caption the different counties constituting the newly constituted district, nor to state that one of the counties composing such district was transferred from some adjoining district. The caption is sufficient, and not violative of article 3, section 35, Constitution.

3. Defendant's motion to set aside and quash the indictment because he was not allowed an opportunity for challenging the array of jurors constituting the grand jury was not well taken. He made no request to be brought from jail for that purpose. This was necessary. Code Crim. Proc., art. 377; Willson's Crim. Stats., secs. 1901, 1902.

4. A continuance was sought in order to have analyzed the blood found upon the defendant's clothing. There was no diligence used to obtain such analysis, and no excuse given for such failure. The murder occurred October 15, and the application for continuance was filed January 14 following. Again, the blood spots were found upon defendant's hat, pants, shirt, and shoes, and the application alleges that it came from a squirrel he had dressed on the morning preceding the homicide at night. The evidence adduced by himself, as well as by the State, shows that he did not dress the squirrel. He introduced his daughter, who stated that a squirrel had been given her on the morning in question, but that it was dressed before she received it, and she carried it home after it was given her, and the State introduced the witness who made the present, and who also dressed it. The analysis could not have been material, under the facts of this case.

5. When the allegations in a bill of exceptions are contradicted by a statement of the court, annexed to the bill, such statement will be held to correctly present the matter at issue. As thus qualified, the bill disclosed that Oliver Wilkins, husband of deceased, said to defendant, "Aleck, you have killed my wife." Defendant made no reply, and walked off. The admission of this evidence was not error.

6. It was not error to receive and record the verdict on Sunday. Powers v. The State, 23 Texas Cr. App., 42; Walker v. The State, 13 Texas Cr. App., 618; Shearman v. The State, 1 Texas Cr. App., 215.

7. The bill of exceptions recites the reception of the verdict on Sunday, which was the 15th day of the month. The entry of the judgment is shown by the transcript to have been made on the 14th. Because of this variance it does not follow that the judgment was entered on Sunday. If entered on Sunday, it was a fact easy of ascertainment and proof, and should have been shown, if it was desired to set aside the judgment on this ground. We are not authorized to presume, from the variance in the dates stated, that such entry actually occurred on the 15th, or on Sunday. Presumptions are indulged in aid and support of the judgment. The party attacking the judgment must overcome such presumptions. The day set out in record of judgment simply recited the beginning of the trial.

8. The court's omission to instruct the jury in regard to the law of manslaughter was riot error. The evidence does not raise that issue.

9. The evidence supports the conviction. In addition to previous quarrels and difficulties between the parties, and threats of the defendant against deceased, the killing, and the manner of its execution, were attended with such circumstances of enormity and cruelty as afford sufficient evidence to warrant the conclusion, that the killing was the result of a sedate, deliberate mind, and formed design, and that it was committed upon express malice. The judgment is affirmed.

Affirmed.

Judges all present and concurring.