Mayhew v. State

Decision Date22 January 1913
CourtTexas Court of Criminal Appeals
PartiesMAYHEW 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.

PRENDERGAST, J.

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: "The above and foregoing minutes embraced on and between pages 430 to 458 hereof, being read in open court and found correct, are hereby approved as a part of the minutes for the January term, 1912, of this court. Witness my hand this the 31st day of January A. D. 1912. Thomas L. Blanton, Judge 42nd Judicial District of Texas. Attest: Joe Burkett, Clerk." 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 the District Court of Eastland County, Texas. During regular time of January term, 1912. It appearing to the court that the regular term of the January term, 1912, of the district court of Eastland county, Texas, convened on the first day of January, A. D. 1912, and by law could continue for eight weeks, or until and including the 25th day of February, but that because all business then on the docket subject to trial had been disposed of on the 31st day of January, 1912, court then adjourned; and it further appearing to the court that since said adjournment the cases of No. 2,540, State of Texas v. Bill Mayhew, and No. 2,666, State of Texas v. Will Drake, have been reversed by the Court of Criminal Appeals, and that the mandates in same will have been duly returned to this court by the time hereinafter mentioned; and it further appearing to the court that the said Will Drake is now in jail without bond and that he is now entitled to bail; and it further appearing to the court that a necessity will exist for transferring said two cases on a change of venue to another county, and that unless such orders are made during the regular eight weeks allowed by law for said January term, 1912, said two cases will have to lie over until the next regular term of court, six months hence, thus depriving both the defendants and the state of a speedy trial. It is therefore ordered that said district court of Eastland county, Texas, convene in special session at the courthouse of Eastland on the 24th day of February, A. D. 1912, at 8:30 o'clock a. m. to resume business under the regular January term, 1912, of said court, and during such regular term time, and only for the purpose of disposing of said two cases above mentioned, at which time the said two defendants Bill Mayhew and Will Drake, are hereby notified to be present before this court, and the clerk hereof is to spread this order upon the minutes of this court and issue and have precept and copy of this order served upon Messrs. H. P. Brelsford and J. J. Butts at once and copy published in the Eastland Chronicle, done this February 12th, 1912. Thomas L. Blanton, Judge 42nd Judicial District of Texas."

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 State of Texas v. Bill Mayhew. No. 2,540. January Term, 1912, of the District Court of Eastland county, Texas. February 24th, 1912. On this day this cause coming on to be heard on the question of the change of venue of said cause to some other county; and thereupon came on to be heard the defendant's plea to the jurisdiction of this court, to at this time, make and enter an order or judgment changing the venue of said cause and transferring same to some other county for trial and the court having heard and considered said plea and being fully advised in the premises is of the opinion that said plea is not well taken and that this court has jurisdiction to make and enter said order so changing the venue of said cause, it is therefore considered, ordered and adjudged by the court that said plea be and the same is hereby overruled, to which said order and judgment the defendant in open court then and there duly excepted." 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:

"This court has not jurisdiction, power, or authority to make and enter a valid order or judgment changing the venue of this cause from the district court of Eastland county to the district court of any other county in the state of Texas, for this:

"(1) It appears from the order of the judge convening of the special term of the district court in and for Eastland county, Texas, a certified copy of which is hereto attached and made a part hereof and reference thereunto made: (a) That this is a special term of said district court in and for said district. * * * (d) That said order on its face shows that said special term was (not) convened for the purpose of trying any cases on the docket of said court; nor for the purpose of inquiring into any violation of any criminal law of the state of Texas, occurring subsequently to the adjournment of the regular term of the district court in and for said Eastland county, nor for the purpose of transacting any business or engaging in any proceedings or doing aught else contemplated by, or provided in, the statute law of the state of Texas authorizing the convening of the special terms of the district court. * * * (g) Said order, when considered in connection with the laws of the state of Texas providing for the holding of courts in the Forty-Second judicial district in said state of Texas, shows that this cause should not be tried and disposed of at this special term of this court, because the impaneling of no petit jury is provided for, * * * nor in the order of the judge convening this court in special term and because this is a special term of a district court in and for the said county of Eastland could not remain in session longer than 12 o'clock a. m. on this date, because, etc. * * *

"(2) That no notice of the time and place of the convening of said special term of this court has been issued by the clerk of the district court in and for Eastland county, Tex., nor published by the sheriff of Eastland county as required by law.

"(3) Because the law authorizing and providing for the convening and holding of special terms of the district court does not authorize the convening of said court in special term, nor the holding of special terms thereof, merely and solely for the purpose of changing the venue of cases of the docket thereof, or that may be pending therein." (Italics ours.)

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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