Webb v. State

278 S.W.2d 158, 161 Tex. Crim. 442, 1955 Tex. Crim. App. LEXIS 1444

• Court: Court of Criminal Appeals of Texas
• Decided: March 9, 1955
• Docket: 27410
• Status: Published

Opinions

MORRISON, Presiding Judge.

The offense is murder; the punishment, death.

This conviction must be reversed because the court heard for some several days (since it requires 238 pages of the statement of facts to cover it) evidence on the motion to quash the indictment in the absence of the accused. The cause was set for June 7, 1954. On the day preceding, the appellant, who was in jail, was carried to the hospital for an appendectomy. On the morning of the 7th, the court called the case, and the state announced ready, even though it was known that the appellant was not present. The appellant’s court-appointed counsel filed a ihotion to quash the indictment, but objected strenuously to proceeding without the appellant being present. The court offered to issue an attachment if appellant’s counsel would request it. Counsel stated that they did not want to take the responsibility of injury to appellant’s health that might result from moving him from the hospital at that time. The court then proceeded to hear testimony on the motion to quash in the absence of the accused. The court seemed to act on the theory that it was incumbent upon appellant’s counsel to have him present and that his presence was not necessary. Since the appelant was not at liberty on bail but was in custody and since a hearing of evidence on the motion to quash the indictment is a vital step in the trial of a criminal case, the trial court was in error in both grounds.

In Phelps v. State, 158 Cr. Rep. 510, 257 S.W. 2d 302, we said, “Our system of jurisprudence is bottomed on the doctrine of confrontation. An accused is not confronted by witnesses who speak in his absence.”

In Ruiz v. State, 92 Texas Cr. Ren. 73, 242 S.W. 231, this court reversed a conviction because the appellant was in jail and not present in court when the motion for new trial in his case was heard. There we said:

“A person charged with crime is guaranteed by our Constitution the right to be confronted by the witnesses against him. This means the witnesses testifying against him upon any phase of his trial. Article 1, Sec. 10, Const.”

In Garcia v. State, 151 Texas Cr. Rep. 573, 210 S.W. 2d 574, we fully discussed the right of confrontation guaranteed by the Constitution.

Another serious question also presents itself for decision. The motion to quash the indictment alleged that it was not returned during a legally constituted term of court and that the grand jury which returned it was not a legally constituted grand jury. In order to decide that question, we must construe the law relating to terms of court and carefully note the chronology of events in this case.

Section 115 of Article 119, V.A.C.S., provides that the terms of court in Upshur County, where this prosecution was held, shall begin on the first Monday in January and June of each year and may continue in session until and including the Saturday immediately preceding the Monday for convening the next regular term.

On March 18, 1954, the January term of said court was still in session, with an empaneled grand jury which had been discharged but was subject to being reassembled under the provisions of Article 372, V.A.C.C.P. On said date the judge of said court ordered a special term of court to be convened on March 22 and to terminate on May 31 unless terminated sooner by order of the court. On the same day the court appointed five men to act as jury commissioners for the special term.

On March 20 the court entered an order adjourning the regular term of said court as of March 22 and until the expiration or adjournment of the special term.

The indictment against the appellant was returned on March 25 by the grand jury chosen for the special term and on the same day they were discharged.

On April 2 the court entered an order adjourning the special term as of April 7 and on the same day ordered the grand jury chosen for the regular term to reconvene on April 7.

On April 7 the court entered an order reconvening the regular term as of that date, and the grand jury for the regular term reconvened.

Appellant contends that Article 1920, V.A.C.S., which authorizes the holding of special terms in the district court, does not authorize the procedure set forth above.

We are inclined to agree with him. The Supreme Court of this State in Labadie v. Dean, 47 Texas 90, said “When a Court is organized and opened for a regular term, the term continues until it is ended by order of final adjournment, or until the efflux of time fixed by law for its continuance.”

Article 338, V.A.C.C.P., provides for the selection of grand jurors for the term of coutt.

Article 372, V.A.C.C.P., provides, in part, as follows: “A grand jury discharged by the Court for the term may be reassembled by the Court at any time during the term.”

We have concluded that the trial court was without authority to call a special term to convene prior to the final adjournment of the regular term.

We commend the conscientious trial court for his efforts to secure a grand jury which would not be subject to the complaint of racial discrimination.

The judgment is reversed, and the prosecution under the present indictment is ordered dismissed.