Davis v. State

• Decision Date: 05 May 1920
• Docket Number: (No. 5777.)
• Citation: 88 Tex. Cr. R. 183,225 S.W. 532
• Parties: DAVIS v. STATE.
• Court: Texas Court of Criminal Appeals

225 S.W. 532

88 Tex. Cr. R. 183

DAVIS v. STATE.

(No. 5777.)

Court of Criminal Appeals of Texas.

May 5, 1920.

Appeal Reinstated and Judgment Affirmed November 24, 1920.

Appeal from Bell County Court; M. B. Blair, Judge.

J. A. Davis was convicted of conducting a pool hall, and appeals. Affirmed.

Williams & Williams, of Waco, and Black & Smedley, of Austin, for appellant.

C. M. Cureton, Atty. Gen., E. F. Smith, and Alvin M. Owsley, Asst. Attys. Gen., for the State.

LATTIMORE, J.

The caption of the transcript of this case is as follows:

"The State of Texas, County of Bell.

"At the February term of the county court, begun and holden at Belton, within and for the county of Bell, before the Honorable M. B. Blair, county judge, the following case, among others, came on for trial, to wit: The State of Texas v. J. A. Davis. No. 566."

It is impossible for us to tell whether the transcript, of which the foregoing is the caption, contains the record of the trial during any particular year, as no date appears anywhere in the caption; nor is it there stated when the term of the court began and ended. This court suffers so continually from the carelessness of the officials charged with the duty of repairing transcripts that its limit of patience is almost reached. It seems that calling attention in opinions, to such matters, has little effect. The rules of practice with regard to these matters are well understood, and there is no excuse for the delay and expense incident to the necessary correction of such errors.

The appeal is dismissed.

On Motion for Rehearing.

This appeal was dismissed at a former time by this court, on account of a defective caption to the transcript. It now appears that a proper caption has been affixed, as shown by the official certificate of the county clerk of Bell county, and upon motion the cause is reinstated, and is now decided upon its merits.

Appellant was the proprietor of a building in Holland, Bell county, Tex., in which pool tables were exhibited for hire, and was convicted in the county court of said county for the offense defined by the terms of chapter 14, passed at the Regular Session of the Thirty-Sixth Legislature, which forbids the operation and maintenance of pool halls, and his punishment fixed at a fine of $25.

In bringing this appeal before this court, appellant's contentions are made up of attacks upon the law, based on various reasons, which will be noted in their order.

Appellant first says that the law is unconstitutional, because of the fact that a concurrent resolution was introduced in evidence, which appears in the respective Journals of the two Houses of the Texas Legislature, by which resolution it was directed that the bill containing the law in question be so corrected as to make it use in a certain place the word "and" instead of the word "or," which appeared in the bill as originally engrossed. In passing upon this matter, we can only consider such facts as were made to appear on the trial, and are present in the record as there made.

In support of his motion to quash the pleading on the ground just stated, appellant offered in evidence excerpts from the Senate Journal of the Regular Session of 1919, p. 261, and of the House Journal, p. 353. Nothing in either excerpt indicates the date of the introduction or adoption of the resolution referred to. Said resolution is as follows:

"Be it resolved by the Senate of Texas, the House of Representatives concurring, that the engrossing clerk of the Senate be and she is hereby authorized and directed to correct Senate Bill No. 14 as engrossed so that the clause, `or by both such fine or imprisonment' as the same appears in section 2 of said bill be corrected so as to read, `or by both such fine and imprisonment,' as the same appears in the original bill and that the enrolling clerk be authorized and directed to enroll said bill as corrected by this resolution."

In appellant's brief, however, it is stated that this resolution was adopted in each House on February 7th, and that Senate Bill No. 14, which is the act here complained of, was signed on February 10th by the presiding officer of the Senate; and on February 11th, by the presiding officer of the House. While we could not consider facts in the brief which are not a part of the record, we make mention of the above simply to add that in our opinion the Legislature may make corrections such as here appear, at any time before a bill is signed by the presiding officers of the several Houses, and that, too, without violating the spirit or letter of any part of our Constitution affecting the making of laws. Appellant attempts to invoke that part of the Constitution which forbids that any bill or act shall have more than one subject, which must be expressed in its title; and he seems to be of opinion that this concurrent resolution was a bill, and should have been referred to a committee, read on three several days, etc. Appellant cites Hunt v. State, 22 Tex. App. 396, 3 S. W. 233, Ford v. State, 23 Tex. App. 521, 5 S. W. 145, and Wright v. State, 23 Tex. App. 313, 5 S. W. 117, as supporting his contention. The two latter cases disclose opinions rendered without discussion, but with reference to and based upon the Hunt Case. This latter case contains only a discussion of that portion of our Constitution which requires that the presiding officers of each House of our Legislature shall sign all bills and joint resolutions passed by the Legislature, in the presence of the House over which they respectively preside, and cause the fact of such signing to be entered on the Journal. There is a lengthy discussion of said case, pro and con, of the right to investigate the fact that such bills and joint resolutions were not so signed, and whether same may be inquired into by the court by investigation of the Journals in certain instances. Without discussing the numerous authorities in this state and others as well as decisions of the Supreme Court of the United States, which hold that it is not permissible to go behind the enrolled bills, properly signed by the said presiding officers, and approved by the Governor, we observe that nothing in the Hunt Case, supra, sustains appellant's contention in this particular. A concurrent resolution is neither a bill nor a joint resolution; nor are we aware of any law, constitutional provision, or decision of any court, which would deprive the Legislature of its power to correct that which manifestly appears to be a clerical error, and which correction so made was necessary to properly co-ordinate the other words used in the phrase mentioned and to restore the bill to its original form. Especially is this true when it appears that the correction was made before the bill had been signed by the presiding officer of either House, and at a time when same was properly under the control of the legislative body.

It further appears that both Houses unanimously agreed to the correction referred to in said resolution.

Appellant also complains that the caption of said act is not sufficient, in that there are matters in the bill not comprehended by the caption. This would not be a good objection to the caption. If the bill contains subjects not properly included in the scope of the title thereto, this might make invalid that part of the bill not so comprehended; but, if such objection be made and aimed at the caption, same would not be sustained. In the act under discussion, the caption is as follows:

"An act to prohibit the maintenance and operation of pool halls within the state of Texas; defining the term pool hall as used in this act; declaring that the threatened, actual or contemplated use of any premises, place, room, building, or part thereof, or tent or any kind of enclosure, for the purpose of a pool hall as defined in the act shall be enjoined at the suit of the state or any citizen thereof; stating who may be made party defendant in such injunction suits, conferring certain powers and authority upon and fixing certain duties for the Attorney General and the county and district attorneys of the state with reference to such suits; fixing the procedure in such suits; creating and defining offenses in violation of the act and providing the punishment therefor; and declaring an emergency."

It is also urged that there are matters in the bill not comprehended by the caption, and if so, under the express direction of section 35, art. 3, of our state Constitution, such act would be void as to such extraneous provision, provided that such uncomprehended provision be separable from the others. Campbell v. Cook (Civ. App.) 24 S. W. 977; Roddy v. State, 16 Tex. App. 502; Albrecht v. State, 8 Tex. App. 216, 34 Am. Rep. 737; McLaury v. Watelsky, 39 Tex. Civ. App. 394, 87 S. W. 1049; Joliff v. State, 53 Tex. Cr. R. 61, 109 S. W. 176; Clark v. Finley, 93 Tex. 171, 54 S. W. 343; Ry. v. Loyd, 63 Tex. Civ. App. 47, 132 S. W. 899.

Examining the terms of the act in question, we find that the portion objected to appears in section 1 of the bill, which section is as follows:

"On and after the first day of May, A. D. 1919, it shall be unlawful for any person acting for himself or for others to maintain or operate a pool hall within this...