Mayhew v. State
Decision Date | 22 January 1913 |
Court | Texas Court of Criminal Appeals |
Parties | MAYHEW v. STATE. |
Appeal from District Court, Shackelford County; Thomas L. Blanton, Judge.
Bill Mayhew was convicted of murder in the second degree, and he appeals. Affirmed.
Scott & Brelsford, of Eastland, W. L. Grogan, of Jefferson, and J. J. Butts, of Cisco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
Appellant was indicted for murder in Eastland county, Tex. In the first trial of the case in that county there was a hung jury. On the second trial appellant was convicted of murder in the second degree. He appealed from that trial, and this court on February 7, 1912, reversed that judgment. The case is reported in 144 S. W. 229, 39 L. R. A. (N. S.) 671. The regular term prescribed by law for holding the district court in Eastland county fixed the time for the term to begin on the first Monday in January, and that it could continue for eight weeks. The 1st day of January, 1912, was Monday; so that the eight weeks which said court was authorized to be held could continue at least until midnight of February 24, 1912. On January 31, 1912, the business of the term apparently having been disposed of, the district judge had entered in the minutes of said court the following: And then it seems adjourned the January term of said court.
Presiding Judge DAVIDSON has prepared an opinion herein by which he holds that this conviction must be set aside, and the cause reversed and the venue ordered changed back from Shackelford county, where this trial occurred, to Eastland county, on two grounds: First. That the special term of court of Eastland county called by Judge Blanton, the judge of the district embracing Eastland county, at which the venue of this case was changed from Eastland to Shackelford county, was not a special term of that court convened by the judge, but that it was an attempt to reopen the regular January term of said court, which he holds could not be done. Second. That the order changing the venue from Eastland to Shackelford county is void, because the order convening the district court of Eastland county in a special term, or the attempt to reconvene the regular January term, was made pending the appeal of this case in this court, and before the mandate from this court reached the lower court. As we could not agree with him on either of said propositions and as the writer had to prepare an opinion in the Will Drake Case, 153 S. W. 848, a companion case to this, on the same questions, the duty of preparing the opinion in this case was therefore devolved upon the writer hereof.
On February 12, 1912, Judge Blanton, the judge of the Forty-Second judicial district of Texas, which embraces Eastland county, made and had entered in the minutes of said court on February 14, 1912, the following order convening the said court in special session:
In accordance with said order, Judge Blanton appeared at the time and place fixed therein, had the court duly opened, and the minutes show as follows: "Be it remembered that on this the 24th day of February, A. D. 1912, of the district court of Eastland county, Texas, by order of this court made on February 12th, 1912, the Hon. district court of Eastland county, Texas, was again convened, there being present and presiding Thomas L. Blanton, judge of the 42nd judicial district of Texas, and the following officers, viz.: Hon. W. L. Morris, district attorney, E. P. Kilborn, sheriff, Joe Burkett, clerk, when the following proceedings were had and entered of record, to wit: . The said plea to the jurisdiction of the court in the order just above referred to is quite lengthy. It is unnecessary to copy it in full. In it appellant sets up and contends:
It is useless to copy any more of appellant's said plea. What we have copied above was done for the purpose of showing that the appellant and his attorneys contended only and solely that said term of court at which the venue in this case was changed was a special term, and not the regular...
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...231; Culver v. Fidelity & Dep. Co., 149 Mich. 630, 113 N. W. 9; Studabaker v. Faylor, 52 Ind. App. 171, 98 N. E. 318; Mayhew v. State (Tex. Cr. App.) 155 S. W. 191 (5); South Fla. Lumber, etc., Co. v. Read, 65 Fla. 61, 61 South. 125; Bohanan v. Darden, 7 Ala. App. 220, 60 South. 955; Alabam......
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