Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5. Page: 1
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SUPREME COURT OF TEXAS.
DECEMBER TERM, 1849.
THE STATE V. DAJGHERTY.
Where the Constitution contains a grant of jurisdiction, "with such exceptions and under
such regulations as the Legislature shall make," whether the grant remains dormant
until a rule is prescribed for its exercise, qucre. But, however that may le, it is well
settled that in such cases affirmative legislation, covering part of the ground included in
the grant, is in effect a negative upon the exercise of any jurisdiction in that behalf not
included in the legislative grant or regulation. (Note 1.)
Therefore, the Constitution of the State having conferred upon the Supreme Court appellate
jurisdiction in criminal cases, " with such exceptions and under such regulations as the
Legislature shall make,' and the Legisl4ture having only provided "' that the defendant to
any indictment or prosecution for any criminal offense in the District Court of this State
shall have the right of appeal to the Supreme Court, it follows that the State cannot appeal
in criminal cases.
The act of December 22,1836, which authorized the judges of the District Courts to certify
novel and difficult questions to the Supreme Court for decision was repealed by the act of
the 13th of May, 1846, to regulate proceedings in the District Courts.
Appeal from Henderson. At the May Term, 1848, of the District Court of
the county of Henderson a bill of indictment was found against the said defendant
for gaming. At the May Term, 1849, of said court, when said cause
was called for trial, the defendant filed a motion to quash the venire [2] ficias
and bill of indictment, on the grount that said writ by whiclh the jurors were
summoned who found said indictment hadl no seal attached thereto according
to law, and that said writ was not signed and tested by the clerk of said court;
which motion was sustained by the court, tile special venire quashed, and the
judgment of the court rendered that tie defendant go hence without day.
Wherellpon the district attorney gave notice of appeal and appealed to tile Supreme
Court, and the court ordered the same to be certified to the Supreme
Court as a novel question for their decision therein.'
Hamnilton, for appellant.
Hyde and Jennings, for appellee.
I. After the motion was ststailletd land the defendant adjudged to go hence
without day the court had no further power ill the premises, and could not
reserve the same for tie consideration of the Supreme Court. Thle act of December
22, 1836, giving this power was repealed by the 'act of the 13th May,
1846. Nor lias the State the right of appeal in criminal cases; there is no
statute giving such right; and see 'The State v. Soloman, (6 Yerg. R., 340) and
the authorities there referred to.
II. The indictment should have been quashed, for the reason that the venire
facias was void, it having no seal thereto. The 8thl section of the act of the
11th May, 1846, describes the seal to be procured for the clerk of the District
Court, the impression of which seal muust be attache(} to all writs and process,
except subpoenas, issuing from said court; antd until such seal be procured the
seal formerly in use or a private seal may be used. In tilis case the clerk was
not provided with a seal, under which circumstuices his former seal, if he had
one, or his private seal, was as essential as the Roperr seal would have been if
one had been provided; and there being either attached to said venirefacias,
it must be void and all the proceedings thereon.
1
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5., book, 1883; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28569/m1/9/: accessed May 7, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .