Diese v. State

246 S.W.2d 888, 157 Tex. Crim. 83, 1952 Tex. Crim. App. LEXIS 1681

• Court: Court of Criminal Appeals of Texas
• Decided: January 23, 1952
• Docket: No. 25632
• Status: Published

Opinions

GRAVES, Presiding Judge.

Appellant was charged with a violation of the liquor laws in Mitchell County, and upon his trial before a jury was fined the sum of $1,000.00.

It is the appellant’s contention that the county court of Mitchell County was not legally in session at the time of the trial of this case on August 29, 1951. Appellant insists that the court had no right to be in session at that time and that therefore this trial was without due process of law.

The following is an order of the commissioners’ court dated February 12, 1951:

“The Court approved County Court Terms as follows:

Term #1 being the months of — January and February

Term #2 being the months of — March and April

Term #3 being the months of — May and June

Term #4 being the months of — July and August

Term #5 being the months of — September and October

Term #6 being the months of — November and December

“Justice Court is in continuous session. A new Court being convened each 4th Monday of each Month.

“Sam Bullock, County Judge.”

Appellant contends that the order does not fix the terms of the County Court as provided by law for the commissioners’ court. It is insisted that the word “approved” does not mean that the commissioners’ court fixed those dates as the county court terms. We cannot agree with this contention. It seems to us that if the commissioners’ court approved such as the terms of the county court of Mitchell County, it means that the commissioners’ court fixed those as the dates of such terms and that the county court of Mitchell County should meet and remain in session for each two months as set forth therein, the present trial having been held in one of such terms.

Appellant also complains because the court, in setting forth the penalty in the event of a conviction herein, failed to charge the law relative to the punishment, in that the violation of the law charged against appellant herein could have been punished by a fine or imprisonment in the county jail, either or both. The court neglected to say that appellant could have been punished by a fine and given a jail sentence, either or both, but only charged the assessment of either but not both. As a result thereof, so appellant contends, he was only fined the sum of $1,000.00, and that no jail penalty was assessed. In the first place, we are loathe to see where appellant was injured because of the court’s failure to charge that both a fine and imprisonment could have been assessed against appellant. In the second place, we do not find any objection in the record to the court’s charge. Therefore, appellant’s contention is overruled in this respect.

Finding no error in the record, the judgment will be affirmed.