Silver v. State

• Decision Date: 10 October 1928
• Docket Number: (No. 11108.)
• Citation: 9 S.W.2d 358
• Parties: SILVER v. STATE.
• Court: Texas Court of Criminal Appeals

9 S.W.2d 358

SILVER v. STATE.

(No. 11108.)

Court of Criminal Appeals of Texas.

October 10, 1928.

On application to file a second motion for rehearing. Application denied.

For former opinion, see 8 S.W.(2d) 144.

MORROW, P. J.

The appellant's appeal was submitted to this court upon brief and oral argument on the 23d day of November, 1927. On the 11th day of January, 1928, a judgment of affirmance was rendered. On the 8th day of February following a motion for rehearing was submitted to this court and argued by counsel, and on the 28th day of June, 1928, the motion for rehearing was overruled . The term of court at which the orders mentioned were made ended on the 30th day of June, 1928. On the 8th day of July, 1928, there was filed with the clerk an application for permission to file a second motion for rehearing.

The power of the court to entertain the second motion for rehearing or to grant the relief therein sought is a question with which this court is now confronted. The article of the Constitution creating this court states:

"The Court of Criminal Appeals shall sit for the transaction of business from the first Monday in October to the last Saturday of June in each year." Article 5, § 5.

In accord with this provision of the Constitution the court adjourned on the 30th day of June, 1928, which was eight days before the filing of the motion which we are now called upon to consider. A new term of court reopened on October 1, 1928. By the proceeding in hand, this court is called upon at this subsequent term to annul a judgment rendered and made final by overruling the motion for rehearing at its previous term. It is a general rule that no court of law has the power at a subsequent term to vacate its judgments rendered at a previous term. This is based upon the principle that there must be some period at which the litigation shall cease. On the subject the Supreme Court of this state gave this expression:

"These doctrines are in entire conformity with the principles established in decided cases of the highest authority. In the case Ex parte Sibbald v. United States, 12 Pet. 492 , it was declared that the Supreme Court had no power to review their own decisions, whether in a case at law or in equity. That no principle was better settled, or of more universal application, than that no court can reverse or annul its own final decrees or judgments for errors of fact or law, after the term in which they have been rendered, unless for clerical mistakes ([Cameron v. McRoberts] 3 Wheat. 591 ; [Parsons v. Bedford] 3 Pet. 431 [433, 7 L. Ed. 732]); or to reinstate a cause dismissed by mistake ([The Palmyra] 12 Wheat. 10 ); and that no substantial change or modification could be made, affecting the judgment in any material thing. To this rule, as a general one applicable to all courts, bills of review in equity, and writs of error coram nobis at law, were stated to be exceptions. That inferior courts could not vary the decree, or examine it for any other purpose than execution, or give any other or further relief, or review it upon any matter decided on appeal for error apparent, or intermeddle with it further than to settle so much as has been remanded. That after a mandate, no rehearing has ever been granted in the House of Lords (3 Dow. P. C. 157); and, on a subsequent appeal, nothing is brought up but the proceeding subsequent to the mandate ([Himely v. Rose] 5 Cranch, 316 ; [Browder v. McArthur] 7 Wheat. 58, 59 ; [The Santa Maria] 10 Wheat. 443 ).

"In the case of People ex rel. Attorney General v. Mayor and Aldermen of the City of New York, 25 Wend. 253 , an application was made at the next term after the decision, for a rehearing, and the question of the legal and constitutional rights of the court to open and reverse its judgments was fully considered; and it was held that the court had no legal right, or power, to grant a rehearing upon a writ of error after a final judgment has been pronounced upon the merits of the case, and has been regularly settled and entered of record, in the form required by law." Chambers v. Hodges, 3 Tex. 529.

The principle announced has had the sanction of American and English courts and text-writers. See Freeman on Judgments (5th Ed.) vol. 1, p. 140; Ruling Case Law, vol. 15, p. 671, § 124.

The Court of Criminal Appeals, like other courts of record, has control of its judgments during the term at which they are rendered, but such power as to final judgments ceases with the end of the term except where by statute the court is authorized to grant, at a subsequent term, a motion for rehearing. There is found in the statutes of this state no provision declaring that the Court of Criminal Appeals may, at a subsequent term, set aside a judgment theretofore rendered. There is such a provision applying to the Supreme Courts and the Courts of Civil Appeals. See articles 1762 and 1877, R. S. 1925. In each of these, the parties are permitted to file a motion for...