Hill v. State

• Decision Date: 28 April 1943
• Docket Number: No. 22475.,22475.
• Citation: 171 S.W.2d 880
• Parties: HILL v. STATE.
• Court: Texas Court of Criminal Appeals

171 S.W.2d 880

HILL v. STATE.

No. 22475.

Court of Criminal Appeals of Texas.

April 28, 1943.

Rehearing Denied June 2, 1943.

Appeal from Criminal District Court No. 2, Dallas County; Henry King, Judge.

Henry Allen Hill was convicted of rape, and he appeals.

Judgment affirmed.

Doss Hardin, of Dallas, for appellant.

Dean Gauldin, Criminal Dist. Atty., and Chas. A. Pippen, Asst. Dist. Atty., both of Dallas, and Spurgeon E. Bell, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

The appeal is from a death sentence on a charge of rape. The case has been before this court on a former appeal. (See Hill v. State, 157 S.W.2d 369) at which time the facts were sufficiently stated and are not different in the present appeal. The Supreme Court of the United States reversed the case on account of the showing of race discrimination in the selection of the grand jury which indicted him. 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559. Subsequently he was reindicted in the manner hereinafter fully stated and the trial had was on the second indictment.

A motion was timely filed to quash the second indictment. One ground set out was that a member of the grand jury returning this indictment was a commissioner to draw the grand jury which returned the former indictment. Appellant has filed no brief in the case and we are unable to conceive of the error, or of the possible injury that might have resulted by reason of this fact.

A more insistent proposition set out in the second section of the motion to quash has attracted our attention and impressed us as being the only question in the case different to that which has been heretofore discussed and which will require further attention in this opinion. The offense of rape is alleged to have been committed in Dallas County, Texas, on the 1st day of December, 1940. Within a few days thereafter an indictment was returned upon which he was tried and sentenced to death, from which the former appeal came. Article 178, Code of Criminal Procedure, as codified in 1925, provides a period of one year within which all indictments for rape must be returned. The Forty-seventh Legislature, Regular Session, page 1335, passed an act amending Article 183, Vernon's Ann.CC.P. art. 178, which became effective on July 9, 1941, eight months after the commission of the offense alleged. Sections 2 and 3 of the amended article read as follows:

"2. The time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation.

"3. The term `during the pendency,' as used herein, means that period of time beginning with the day the indictment, information, or complaint is filed in a court of competent jurisdiction and ending with the day such accusation is, by an order of a trial court having jurisdiction thereof, determined to be invalid for any reason."

This was prior to the decision of this court affirming the case and prior to the reversal of it by the Supreme Court of the United States, which was of date June 1, 1942. On October 16, 1942, the present indictment was returned, which was approximately a year and ten months after the commission of the offense of rape alleged. The amount of time between the commission of the offense and the first indictment, added to the period from June 1, 1942, to October 16, 1942, is much less than one year. Under the terms of the amendment above quoted the period of limitation would not be available to appellant as a bar to the prosecution. It is contended, however, that the passage of this amendment is in violation of Article I, Section 10, Constitution of the United States, and of Article 1, Section 16 of the Constitution of the State of Texas, Vernon's Ann.St., forbidding the passage of ex post facto laws in relation to criminal matters. If this contention is to be sustained the prosecution would be barred and it would be the duty of this court to reverse the judgment and order the prosecution dismissed. Whether it is or not is the question which we must decide.

We are to deal with a question of first impression so far as we are able to ascertain. Seldom has it been before the courts of any State on an issue sufficiently similar to aid us very much in the conclusion which we must reach. Appellant has filed no brief in the case and presents no authority sustaining his contention. It is equally noticeable that while the office of the District Attorney has been ably represented in presenting the facts before this court, they have cited us to no case on the subject.

From Corpus Juris Secundum, vol. 22, Criminal Law, § 224, p. 351, we quote the following: "Since enactments limiting the time for the prosecution of offenses are measures of public policy only, and are entirely subject to the will of the legislature, they may be changed or repealed altogether in any case where a right to acquittal has not been absolutely acquired by the completion of the period of limitation; but where a complete defense has arisen under such a statute, it cannot be taken away by a subsequent repeal thereof. So, too, where a statute extends a period of limitation, or provides for the tolling thereof, it applies to offenses not barred at the time of the passage of the act, so that a prosecution may be commenced at any time within the newly established period although the original period of limitation had then expired; but such a statute cannot operate to revive offenses which were barred at the time of its enactment, since it would, in that case, be ex post facto."

It was held in the case of State v. Sneed, 25 Tex. Supp. 66, that the Legislature had no power to revive the right to prosecute by an enactment passed after the period of limitation had run. This case is cited for the statement to that effect in the foregoing quoted article; but the exact question before us here is whether or not the Legislature has power after the commission of an offense to toll the running of limitation as provided by law at the time of the commission of the crime so that it will not run during the period in which there is an indictment or complaint and information pending against the party for such crime. Conceivably that was not in the mind of the court when they wrote the opinion in the Sneed case. The absence of any citation on the question before us by Corpus Juris Secundum is persuasive that further diligence on our part would not avail to find such a decision from our courts.

Inasmuch as the question raised is one of Federal concern, we have exhausted our power to find the exact question before the court of last resort and to read the most valuable discussions by text writers referring to Federal decisions. From many such cases discussed in Words and Phrases, Perm. Ed., vol. 15, p. 732 et seq., it may be said that it is settled and thoroughly recognized that not every retrospective criminal statute is necessarily prohibited as being ex post facto. If the subsequent enactment mitigates the punishment prescribed in the statute existing when the offense was committed it would not come within the definition. A retrospective criminal or penal law that does not deprive a party of some constitutional right to which he was entitled under the law at the time the offense was committed or does not alter his situation to his disadvantage is not ex post facto. Mr. Justice Chase has tersely summarized ex post facto law to be every law that makes an action done before the passing of the law and which was innocent when done to become criminal and punishable as such; every law that aggravates a crime or makes it greater than when it was committed; every law that changes and inflicts a greater punishment; and "every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender." Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648. The foregoing included the best thought on the subject at that time and in making such summary Mr. Justice Chase cited...