Leviness v. State

• Decision Date: 24 May 1950
• Docket Number: No. 24688,24688
• Citation: 230 S.W.2d 814,155 Tex.Crim. 85
• Parties: LEVINESS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 814

230 S.W.2d 814

155 Tex.Crim. 85

LEVINESS v. STATE.

No. 24688.

Court of Criminal Appeals of Texas.

May 24, 1950.

Rehearing Denied June 21, 1950.

Houston Thompson, Silsbee, for appellant.

George P. Blackburn, state's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was tried for the murder of Cloyce Eloise Twitchell and assessed the penalty of death upon his conviction therefor.

The testimony is clear and sufficient to show a wanton and brutal murder of this unfortunate woman, and it is unnecessary to go into the gruesome dctails thereof in the disposal of this cause.

Prior to May 12, 1949, there were three terms of the District Court held in Hardin County, which was one of the counties comprising the 75th Judicial District of the state, these terms being the first Monday in january, the 19th Monday thereafter (which would be May 16th in this instance), and the 33d Monday after such first Monday in January, the date being August 22d in the year 1949. See Art. 199, Subdivision 75, Vernon's Revised Civil Statutes.

On May 12, 1949, four days before the time set for convening the second term in 1949 of the Hardin County District Court, House Bill No. 780 of the 51st Legislature of Texas, went into effect, which statute fixed two consecutive terms for such court, that provided for it to continue in practically a continuous session throughout the year. On May 14, 1949, the judge of such court entered an order in the Criminal Minutes of said court and thereby called a special session of such court to meet on May 16, 1949, to continue until the first Monday in September, 1949, such lastnamed date being the same as was provided for by House Bill No. 780, as the convening time for the second new term of said court.

At the session of such court on May 16, 1949, the grand jury for that date, having been drawn at the previous old regular term, was empaneled and sworn, and among other things, they found this indictment for murder against the appellant.

It is contended that such grand jury, by virtue of House Bill No. 780, was not a valid one for this special session of May 16, 1949, but was valid only for the term beginning the first Monday in September, 1949. This new statute reads in part as follows: 'Sec. 3. All processes issued bonds and recognizances made and all grand and petit juries drawn before this Act takes effect shall be valid for and returnable to the next succeeding term of the District Courts of [each county] as herein fixed as though issued and served for such terms and returnable to and drawn for the same.'

In other words, it is contended that there was no court in session on May 12, 1949, the day the new law went into effect; and no grand jury being ordered by the court at the same time he called the special session of May 16, 1949, of the March term of said court, that the judge thereof could not utilize the grand jury previously drawn for the regular may 16th Term of that court. By its terms, the Act specifically provides that this grand jury shall be used for the next succeeding term which was to convene in September.

That the judge of such court could call as many special terms as he might see fit for the dispatch of business is plain from such House Bill No. 780, but his court not being in session on May 12, 1949, we think he could only call a special grand jury for his special session if he saw fit to do so, and could not utilize a grand jury already drawn for a term of court that had been superseded by a new statute effective since such grand jury had been drawn.

We think the term of court was a valid one, but that the utilization of a grand jury drawn in January prior to such special session was invalid; that this January-drawn grand jury, by reason...