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ED FEAGIN v. STATE (12/11/57)

decided: December 11, 1957.

ED FEAGIN
v.
STATE



Driving While Intoxicated. Appeal from county court of Waller County; penalty, fine of $50 and three days' confinement in jail. Hon. John C. Winfree, Judge Presiding.

COUNSEL

Wm. F. Jackson and J. C. McEvoy, Hempstead, for appellant.

W. E. Martin, Houston, and J. W. Reid, Abilene as amicus curiae.

Leon Douglas, State's Attorney, Austin, for the state.

Davidson, Judge. Woodley, Judge, dissenting.

Author: Davidson

[ 166 Tex. Crim. Page 4]

    This is an appeal from a misdemeanor conviction for driving, while intoxicated, a motor vehicle upon a public highway, with punishment assessed at a fine of $50 and three days' confinement in jail. We are met at the outset with the motion of the state to dismiss the appeal because of the absence of sentence by the trial court. It is the state's contention that a sentence is now necessary in a misdemeanor case and that it has been so required since the effective date of Chap. 149, Acts of the Regular Session of the 55th Legislature, in 1957, amending Art. 768, C.C.P. Said act will be referred to, hereinafter, as the amendment of 1957.

That part of the act necessary to a determination of the question here presented is as follows:

"If a new trial is not granted, nor judgment arrested in felony and misdemeanor cases, the sentence shall be pronounced in the presence of the defendant . . . ."

[ 166 Tex. Crim. Page 5]

    The only material change in Art. 768, C.C.P., as it existed prior to the amendment is the insertion of the words: "and misdemeanor cases" following the word "felony." Appellant insists that the caption to the amendment of 1957 is not sufficient to warrant the conclusion that a sentence was thereafter made necessary in all misdemeanor cases.

The caption to the act reads as follows:

"An Act amending Article 768, Code of Criminal Procedure, 1925, relating to credit for time spent in jail between arrest and sentence or pending appeal, so as to make its provisions applicable to misdemeanor cases; and declaring an emergency."

The Constitution of this state, by Art. 3, Sec. 30, requires that no law shall be passed except by bill, while Sec. 35 of Art. 3 provides that no bill (except general appropriation bills) shall contain more ...


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