Parshall v. State

• Decision Date: 22 March 1911
• Citation: 138 S.W. 759
• Parties: PARSHALL v. STATE.
• Court: Texas Court of Criminal Appeals

138 S.W. 759

PARSHALL v. STATE.

Court of Criminal Appeals of Texas.

March 22, 1911.

On Motion for Rehearing, May 3, 1911.

Dissenting Opinion June 16, 1911.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

Harry Parshall was convicted of keeping a room where people resorted for the purpose of gambling and betting with cards, and appeals. Affirmed.

Taylor & Gallagher and Williams & Williams, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

On March 5, 1909, the grand jury of McLennan county, in the Fifty-Fourth judicial district, returned into court an indictment against appellant, in which there were 13 separate and distinct counts in as many separate paragraphs, though none of them numbered. All of them are based on article 388b, of the Penal Code of 1895, as enacted by the Thirtieth Legislature, p. 107, charging in various forms under this article a violation thereof on or about February 24, 1909. Some of them are based on the allegation as to the whole of the Waverly Hotel; others as to room No. 1 in that hotel; and six of them as to room No. 6 therein.

As stated in appellant's brief, and as shown by the record, the appellant was convicted under count 3 thereof, which, after the necessary allegation as to the organization of the jury, etc., is: "And the grand jurors aforesaid, upon their oaths aforesaid, do further present in and to the court aforesaid that Harry Parshall did then and there unlawfully keep a room, to wit, room No. 6, in the Waverly Hotel, which said hotel is situated on South Third street, in the city of Waco, McLennan county, Texas, being numbered 215, for the purpose of being used as a place to gamble with cards."

The record in this case is quite voluminous; a considerable portion of it is made up of motions, bills of exception, charges asked, and various other proceedings as to other counts than that upon which the conviction was had. After the state's evidence was all in—the defendant introducing no evidence whatever—the court announced that only four of the several counts (those four pertaining to said room 6) would be submitted to the jury by his charge. The four counts so submitted by him were designated in the charge, not by giving any numbers thereof in the indictment, but by distinguishing them by the allegations thereof severally. It is plain, therefore, that the record contains a great deal of unnecessary and improper matter. It should have been confined to the specific count on which the conviction was had. On account of this state of the record, we have had considerable labor to hunt out therefrom the matters which are pertinent and necessary to be considered and passed upon in the disposition of this case. In the disposition thereof, we have not omitted any point raised or question made that bears upon the various proceedings of the court on the count under which the conviction was had. While we will not discuss all of the questions raised, we will discuss and determine the material ones on which the disposition of the case depends and is made.

1. It is properly raised and claimed that the said act of the Legislature under which this conviction was had is unconstitutional, because it was passed by the Legislature in violation of article 3, § 30, of the Constitution, which is: "No law shall be passed except by bill, and no bill shall be so amended in its passage through either house as to change its original purpose."

In order to sustain this contention, one of appellant's bills of exception shows what is claimed to be all of the entries in the House and Senate Journals about this bill, from the introduction thereof until the final passage and enrollment thereof, and the signature of the President of the Senate and Speaker of the House of Representatives. By this it is attempted to be shown that the original purpose of the bill as first introduced was amended in its passage through both houses, so as to change that purpose and thereby render it unconstitutional. The said bill of exceptions giving the proceedings of the two houses shows that both the title and body of the act were amended in various ways and in various stages of its passage by both houses, and additions also made thereto. Article 3, § 31, of the Constitution, says: "Bills may originate in either house, and when passed by such house may be amended, altered or rejected by the other." It will be noted that neither of these provisions requires, nor both taken together require, that the journals of either house shall affirmatively show what the original purpose in any bill introduced is or shall be.

There are in our Constitution several provisions prescribing rules of procedure for the enactment of laws by the Legislature, but which do not require that the journals shall affirmatively show that these rules are complied with by the Legislature, such as article 3, § 37, which says: "No bill shall be considered, unless it has been first referred to a committee and reported thereon, and no bill shall be passed which has not been presented and referred to and reported from a committee at least three days before the final adjournment of the Legislature." And another, the one now under consideration, says: "* * * No bill shall be so amended in its passage through either house as to change its original purpose."

There are certain other constitutional provisions which positively require the journals to show certain facts, such as article 3, § 38, which is: "The presiding officer of each house shall, in the presence of the house over which he presides, sign all bills * * * passed by the Legislature, after their titles have been publicly read before signing; and the fact of signing shall be entered on the journals." And article 3, § 39, which provides that no law, except the general appropriation acts, shall take effect until 90 days after adjournment, unless in case of emergency, etc., the Legislature shall, by a vote of two-thirds of all elected members of each house, otherwise direct, "said vote to be taken by yeas and nays, and entered upon the journals."

The decisions by the courts of the different states of the United States show that they differ as to the construction of these two characters of constitutional provisions. One construction is that only where such constitutional provision affirmatively requires the journals to show given facts can they be looked to for the purpose of determining whether the Legislature has complied therewith or not, and holding that where a constitutional provision does not affirmatively require that the journals shall show such given facts that the enrolled bill, filed in the office of the Secretary of State, which shows the signature of the respective presiding officers of each house and the signature of the Governor in approval, and the publication of such act by the state, is absolutely conclusive upon the courts, and that the journals, nor any other extraneous evidence, can be resorted to for the purpose of determining whether the Legislature has complied therewith or not. The other construction is that the journals can and must be looked to to determine whether the Legislature has complied with every constitutional provision, even though such provisions do not require affirmatively that the journals shall show compliance therewith.

Both this court and our Supreme Court, in well-considered opinions, have adopted that construction of the constitutional provision to the effect that where the Constitution does not affirmatively require the journals to show a given fact that the enrolled bill, properly attested by the presiding officer of each house of the Legislature, approved by the Governor, filed in the Secretary of State's office, and published under the authority of the state as a valid act of the Legislature, is absolutely conclusive of the validity thereof, in accordance with the construction first mentioned just above. Tipton's Case, 28 Tex. App. 438, 13 S. W. 610, 8 L. R. A. 326; Williams v. Taylor, 83 Tex. 672, 19 S. W. 156; Railroad v. Foth, 44 Tex. Civ. App. 275, 100 S. W. 170; s. c., 101 Tex. 133, 100 S. W. 171, 105 S. W. 322. The Supreme Court of the United States has also pointedly and clearly held this. Field v. Clark, 143 U. S. 672, 12 Sup. Ct. 495, 36 L. Ed. 294; Lyons v. Woods, 153 U. S. 649, 14 Sup. Ct. 959, 38 L. Ed. 854. The courts of the following states have also so held: California, Indiana, Kentucky, Mississippi, Montana, Nevada, New Jersey, New York, North Carolina, North Dakota, Pennsylvania, Utah, and Washington. 36 Cyc. 972, note 7. We deem it unnecessary to quote the language of this court, our Supreme Court, the United States Supreme Court, or any of the decisions of the states cited, because they can readily be had and seen. Therefore, so far as this contention of the appellant is concerned, we hold that the act in question is clearly not in violation of our Constitution.

2. It is also contended by appellant that the said act of the Legislature is unconstitutional, in that article 3, § 38, just above mentioned, was violated, in that the journals of the Legislature do not show that the title of said act, as finally passed, was read in full at the time of the signature of the respective presiding officers of each house. From this provision of the Constitution it is seen that it does not require that the journals of the two houses shall affirmatively show what the title of the bill enacted is or that the full title thereof was read. What it does affirmatively require is that the journals shall show only "the fact of signing." This fact is clearly shown by the journals. The authorities above quoted are applicable also here, so that the said act is not violative of said article 3, § 38.

3. Again it is claimed by appellant that the said act of the Legislature is unconstitutional and void, because it is violative of article 3, § 35, of the Constitution. This exact...