Wilson v. State , 37 Tex. Crim. 373 ( 1896 )

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, 17 Tex. 1, and it was there held, if a law was passed by the legislature which, if given immediate effect, as provided by the act, would deprive a county of its constitutional two terms during the year, the new law so changing the holding of courts would be postponed and not given effect until such time as the constitutional two terms during the year could be held. This was followed by our Court of Appeals in Graves v. State, 6 Tex.Crim. App., 228, and in Ex parte Murphy, 27 Tex.Crim. App., 492. So that this question may be considered as settled in this State. By looking to the law of 1892, which, prior to the Act of 1895, regulated the terms of holding court in the various counties composing the Forty-sixth Judicial District, we see that the act authorized one of the terms of the District Court of Greer County to be held on the eighth Monday after the first Monday in February, which, in the year 1805, would be on the 1st day of April. By reference to the law of 1895, we observe that this act requires a term of the District Court in said district to be held in the county of on the eighth Monday after the first Monday in February, which, as above stated, would fall on the 1st day of April in the year 1895. The new law provided that the spring term of the District Court of Greer County should be holden on the sixth Monday after the first Monday in February, which would fall on the 18th day of March in the year 1895. Now, this date for holding the spring term in Greer County had already passed when the new law took effect, and no court had hitherto been holden in Greer County for the spring term of 1895. The date for holding the same, as above stated, fell on the 1st day of April, the very day when the new law required court to be holden in Collingsworth County. So, to give effect to the new law on the 1st day of April, as provided in the Act of 1895, would be to deprive Greer County, one of the counties in said Forty-sixth Judicial District, of one of its two terms during the year 1895. So, as before stated, under former decisions of this court, the taking effect of the new act should be postponed until such time as it could take effect so as to give the constitutional guaranty of two terms of court to each county in the district for the year; and pending the time when such new act should take effect, the Act of 1892, already in existence, would have effect, and regulate the terms of holding court in said judicial district. The court at which this conviction was had convened in Foard County on the 24th of June, 1895, at a time authorized for it to convene under the Act of 1892. This, we hold, was the time authorized by law, and was a legal term of said court. On the argument of the case there seemed to have been some disagreement between counsel for the State and the appellant as to the testimony of the witness, Jamison, and appellant's counsel requested that court have the witness recalled in order to settle the controversy. This the court declined to do. Our statute lays down the practice in this particular, and leaves it with the jury to make such request, and it does not appear that they did so in this case. There is no error in the charge of the court instructing the jury that it was not necessary for the State to prove the want of consent of J.S. Woods to the taking of the cattle. The unquestioned proof in the case showed that Tebe Hart was in the exclusive care, control and management of the cattle, though the ultimate title to the same was in one J.S. Woods; that Woods was not in the country at the time, but was a resident of some foreign country, and had nothing to do with the control and management of the cattle. If the appellant had or claimed any consent from Woods, or any one else besides Tebe Hart, to take said head of cattle, this proof should have been offered by him. Appellant also claims that the verdict of the jury is not supported by the evidence. We have examined the record's carefully, and in our opinion the evidence warranted the verdict. The only real question in the case was as to the identity of the animal in question; that is, whether or not it was the head of cattle belonging to Tebe Hart, and not the head of cattle claimed by the appellant to have been sold to him by his brother, Alex Wilson. This issue was fairly submitted by the jury in the charge of the court. While the appellant offered testimony tending to show that the head of cattle he butchered (and which was alleged to have been stolen by him), was a head of cattle purchased by him from his brother, yet the State, in rebuttal, introduced evidence tending to impeach this claim of appellant. The evidence introduced by the State, we believe, showed beyond any reasonable doubt that the head of cattle taken by the appellant was in fact the head of cattle of Tebe Hart, that ran with Dickerson's cattle, and came up with them every night until the 24th of December, and has never been seen since that date. It is true that young Dickerson did not See the brand on the head of cattle appellant was driving on the morning of the 24th, but he reasonably identified it, by its flesh marks and general appearance, to be the same one which he knew as the "Hart heifer" which ran with his father's cattle. The motion for a rehearing is granted, and the judgment is affirmed.

Motion Granted and Judgment Affirmed.

ON SECOND MOTION FOR REHEARING ON PART OF APPELLANT.