
    JACKSON v. STATE.
    (No. 8482.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.
    Rehearing Denied Jan. 27, 1926.
    On Motion for Stay of Mandate, March 3, 1926.)
    1. Indictment and information <&wkey;l37(3) —Indictment not quashed for district attorney’s presence when grand jury was discussing propriety of finding bill of indictment.
    Indictment will not be quashed because of presence of district attorney, contrary to Code Or. Proc. 1911, art. 426, when grand jury was discussing propriety of finding bill of indictment, where neither grand jury, nor district attorney exceeded rights or duties under article 428.
    2. Criminal law <&wkey;I26(2) — Motion for change of venue properly denied, where no showing of prejudice which might endanger defendant’s right to secure fair trial.
    Motion for change of venue in prosecution for assault held properly denied, where prejudice was not shown to exist in minds of people of county, or such a combination as might endanger defendant’s right to a fair trial.
    3. Criminal law <§=>368(1), 424(5) — Words and acts of defendant and coactors in entire transaction held admissible, as well as testimony of those who found victim chained to tree and narrated his condition.
    Where victim of assault with a prohibited weapon was pulled out of car, whipped, locked to a tree, and' bucket of tar poured over his head, assault was continuous, and words and acts of defendant and all coactors during whole transaction were admissible, as well as testimony of those who found victim chained to tree and narrated his condition and situation.
    4. Assault and battery <§=>88 — Proper to show that victim of assault had received letter of warning some weeks previously when referred to by assailants.
    In prosecution for assault with weapon, it was proper to show that victim had received a letter, some weeks before assault, warning him to leave the country, where it was referred to by parties engaged in assault.
    5. Criminal law <§=>l 122(2) — Refusal of charge that defendant’s membership in Ku Klux Klan could not be considered except to affect credibility of witnesses not shown to be error.
    In prosecution for assault with weapon, refusal of charge that defendant’s membership in Ku Klux Klan could not be considered except to affect credibility of other members, held not shown by bill of exceptions to be error.
    6. Witnesses <§=>236(1) — Questions asked defense witnesses whether they were members of Ku Klux Klan held proper, in prosecution of member for assault.
    In prosecution of alleged member of Ku Klux Klan, for assault, in which others participated, questions asked defense witnesses whether they were members of such order held proper, as affecting question, of conspiracy and concerted action of defendant and his coactors.
    7. Criminal law <&wkey;792 (2) — Charge on law of principals held proper under the evidence.
    In prosecution for assault with prohibited weapon, charge on law of principals held proper under the evidence.
    8. Jury <§=>103(14) — Acceptance of juror having an opinion formed from newspaper reading and neighborhood discussion held not improper.
    "In prosecution for assault, juror held properly accepted, though he had an opinion formed from newspaper reading and neighborhood discussion, where he averred his 'willingness to lay aside such opinion, and declared that defendant’s Ku Klux Klan affiliations would have no weight.
    9. Jury <&wkey;l3l(7) — Refusal to permit counsel to question jury whether opinion was unfavorable to defendant held not error.
    It was not error to refuse to permit defendant’s counsel to ask jurors, who expressed themselves as having formed some kind of opinion, whether, such opinion was unfavorable to defendant.
    10. Criminal law <§=>l 169(2) — Admission of evidence of victim’s relation to other members of family not reversible error, where verdict amply supported. '
    In prosecution for assault with prohibited weapon, admission of evidence of victim, touching his relation to other members of certain family, held not reversible error, where verdict was amply supported by evidence.
    11. Assault and battery <§=>83 — Admission of evidence of victim’s relation to other members of family held erroneous.
    In prosecution for assault, admission of evidence of victim’s relation to other members of certain family held erroneous.
    12. Criminal law <§=>473 — Testimony of physicians who examined condition of assaulted victim’s body held admissible.
    In prosecution for assault with prohibited weapon, testimony of physicians, who examined victim as to condition of his body, held admissible.
    13. Assault and battery <&wkey;90 — Admission of testimony of use of saw to get chain from assaulted victim’s neck held not error.
    Where victim of assault was whipped, tarred, and chained to a tree, admission of testimony as to use of saw to get chain from his neck held not error.
    
      14. Assault and battery <&wkey;83 — Proof that truck was seen in neighborhood of assault on day thereof held admissible.
    In prosecution for assault, proof that one of parties with defendant owned a truck, and that truck was seen in neighborhood of assault on day thereof, held admissible, where truck was at place of assault and was used to convey victim after he was whipped.
    15. Criminal law <&wkey;730(7) — Remarks of district attorney not reversible error, in view of court's instructions.
    Remarks of district attorney that he had heard rumors of a ringer, and that he did not believe there was a ringer on jury, held not reversible error, in view of court’s instruction to jury not to consider same.
    16. Criminal law &wkey;723 (4) — Remarks .of district attorney to jury held not reversible error.
    Remarks of district attorney that he did not believe that there was any man on jury who was not honest, but that if there was his fellow men could tell when they got into jury room, held not reversible error.
    17. Criminal law <&wkey;>956(IO) — Defendant not entitled to new trial, where evidence not showing that juror had formed a preconceived opinion.
    Evidence held not to show that juror had formed a preconceived opinion, sd as to entitle defendant to a new trial.
    On Motion for Rehearing.
    18. Constitutional law &wkey;3'56 — Commission not part of Court of Criminal Appeals, contrary to Constitution and court’s'acts not void.
    Commission created by Acts 39th Leg. (1925) c. 95, is not part of Court of Criminal Appeals, contrary to Constitution limiting such court to three members, so as to invalidate acts of court in case in which opinion was prepared without participation of commissioners.
    On Motion for Stay of Mandate.
    19. Courts <&wkey;396(2) — Federal review cannot be involved, unless state court has passed on question whether federal question is involved.
    Federal review cannot be invoked, unless state court has passed on question whether federal question is involved, especially when so required under particular state practice.
    20. Courts &wkey;>394(3).
    Proper construction of Constitution and laws of a state is not for federal Supreme Court.
    21. Courtsi <S&wkey;394(3).
    Meaning derived by construing together several state statutes is conclusive on federal Supreme Court.
    22. Courts &wkey;394(3).
    Construction of a state statute is not a federal question.
    23. Courts <&wkey;>394(3).
    When applicability of one state statute depends on construction of another such law, state court’s action presents no federal question.
    24.Criminal law &wkey;>l 192 — Mandate on appeal from conviction will not be stayed to permit defendant to apply for certiorari to federal Supreme Court to review conviction, where no federal question is involved.
    Mandate on appeal from conviction for assault with prohibited weapon, to permit defendant to apply for certiorari to federal 'Supreme Court for review of decision of reviewing tribunal affirming conviction, will not be stayed, where petition for certiorari failed to present federal question, and federal Supreme Court being authorized to stay proceedings, if of a different view.
    Appeal from Criminal District Court, Williamson County; James R. Hamilton, Judge.
    Murray Jackson was convicted of an assault with a prohibited weapon, and. he appeals.
    Affirmed.
    W. C. Wofford, of Taylor, Wood & Wood, of Granger, A. M. Felts, of Elgin, Llwellyn Duke, of Georgetown, and W. W. Hair, of Temple, for appellant.
    Dan Moody, Dist. Atty., Wilcox & Graves, J. F. Taulbee, and W. H. Nunn, all of Georgetown, Critz & Lawho'n, of Taylor, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for. the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Williamson county of an assault with a prohibited weapon, and his punishment fixed at confinement in the penitentiary for a term of 5 years.

One Burleson was a salesman, traveling in a car, and in the early part of 1923 made his headquarters for a while at the home of Mrs. Campbell in Williamson county, while he worked adjacent territory. Somo time in January or February a man named Davis came to Mrs. Campbell’s and handed Burle-son an envelope containing a sheet of paper headed, “Georgetown Klan, No. 178:” In the lower right-hand corner of the sheet was a seal, around which were the words “Ku KIux Klan.” Burleson seems to have paid no attention to the matter. Some weeks afterward, in company with Mrs. Campbell and a Mr. and Mrs. Jones, Burleson was out riding one Sunday afternoon in his car. They were on a public highway. Two cars were in the road ahead of them, driving slow. Burleson in his car passed one of said other cars. It was about 6:30 p. m., but the sun was still up. The car in front of Burleson stopped, and the one just behind drew up beside his, and the men therein told him to stop, which he did. The curtains of both said other cars were up. It was not a rainy day. A number of men got but of the car with pistols in their hands and told Burle-son to get out of his car. He asked them what was the idea, and they began pulling him out, cursing him, and beating him with their pistols. Some one said, “Knock him in the head.” Burleson testified that appellant was one of those men, that he had a pistol in his hand, and struck him (Burleson) with it,' but how many blows witness did not know. Still beating him, the men pulled him out of his car and shoved him into one of theirs, and put a sack over his head, and a rope around one arm. They all got into their ears; those men near him holding pistols in their hands as they drove away. They asked him if he got the notice, and- what about those 21 Ku Klux he was going to' kill, etc. When he would start to say anything, they would curse him, call him a s-n of a b-, and tell him to shut up or they would knock out his brains.

They drove some distance, came to a bridge, and some of the party suggested that they stop on the bridge, and they began to get out of their cars, but some one said something about a car, and they all jumped back in their cars and renewed their drive. When they finally stopped, they took Burle-son out of the car, locked a chain around his neck, threatened to castrate him, then led him to a thorn tree, up to which they pulled him by means of the chain, tied his arms behind him, unfastened his trousers, dropped them down, tore his underclothes off of him, took a strap- of leather about 3 inches wide, and one by one proceeded to whip him with the strap, one man holding a pistol in his hand and telling Eurleson that he would knock him in the head if he hollered. The names they called him are unrepeatable. While whipping him, they asked him if he stayed at Mrs. Campbell’s after getting the notice, who bought his car for him, etc. He told them that she did not buy it. They beat him harder and harder, until he was compelled to answer all their questions in the affirmative, to the effect that she bought the car, and that he had been intimate with her, etc. Finally they examined his body and said he was in pretty good shape. Witness said every time they struck him with the strap blood would spurt, and that from his knees to above his waist was raw as beefsteak. When they quit beating him, they put him in the truck, brought him to the town of Taylor, took him to the city hall square, locked the chain which was around his neck to a tree, took the sack off his head, poured a bucket of creosote or tar over his head, and left him.

These facts were- not denied; appellant relying for his defense upon an alibi. A recital of such facts would seem to sufficiently answer those complaints appearing in appellant’s behalf, directed at the fact of a •verdict returned in 15 to 25 minutes, and the assessment of the maximum penalty of 5 years.

A motion to quash the indictment was based on alleged presence of the district attorney when the grand jury was discussing the propriety of finding this bill of indictment. The matters in'this case are of much public interest, and we have taken pains to carefully and fairly sift the facts and authorities relied on by appellant’s distinguished counsel in support of their various contentions. Article 426 of our O. O. P. forbids the presence of the state’s attorney while the grand jury are voting on a bill, or while they are discussing the propriety of finding a bill, but article 428 of said O. C. P. expressly authorizes the grand jury to seek the advice of the state’s attorney in any matter affecting the proper discharge of their duties, or any matter of law about which they require advice. We find nothing in the testimony, adduced in support of appellant’s motion to quash the indictment, supporting the conclusion that either .the grand jury or the state’s attorney transgressed the bounds of their respective rights and duties in matters pertaining to the finding of this indictment.

Appellant’s bill of exceptions No. 2 complains of the refusal of a change of venue. The testimony heard in support of this motion occupies a large part of the transcript. The . editors of most, if not all, of the papers of Williamson county were used as witnesses, and copies of various issues of their papers, carrying accounts of the investigation and occurrences connected with this case, were introduced. Other witnesses were also heard. We have read the testimony of each of these, as well as the statements printed in the papers, and have considered same as fairly as we can, together With all the testimony heard by the court on the question of changing the venue, and are not of opinion that there was any error in the action taken in refusing the application. In our opinion, the statements made in the papers were conservative and not inflammatory, and appear to reflect an effott to acquaint the public with the facts, and not with highly colored accounts of the transactiqn. None of the testimony seems to bring the case within the rules requiring a change of venue. We think that, instead of showing such prejudice to exist in the minds of the people of Williamson county, or the presence of such combination as might endanger the rights' of this appellant in getting a fair trial, the opposite is made to appear. . Because a given matter, necessarily two sided, and possibly many sided, has been presented by the press, and discussed by the people, does not necessarily produce prejudgment. If it did, then men who read and talk with their neighbors, and who might be regarded as informed and intelligent men, would be cut off from jury service. Practically none of the witnesses heard by the court expressed it as their belief that appellant could not get a fair trial in the county, and none oí them set forth knowledge of such general expression ■ of opinion or discussion of the case, or disclosed such condition or sentiment in the minds of the people; as to support appellant’s contentions in this regard.

By several bills of exception appellant complains that the state was not required to elect between acts and transactions. The indictment herein charges that appellant, while then and there unlawfully carrying on and about his person a certain pistol, with said pistol did unlawfully and willfully make an assault upon one Burleson. In our opinion, the assault was a continuous transaction without change, let, or break in the apparent continuity of purpose and execution from the time it began, when Burleson was pulled out of the car, until it ended, when he was locked to the tree in Taylor, and the bucket of creosote or tar poured over his head; and the words and acts of appellant and each and all of his coactors in said transaction, in its entirety, were admissible on this trial, as well as the testimony of those who found Burleson chained to the tree, and narrated his condition and situation. A burglar, who murders, rapes, or steals while inside the burglarized house, cannot chop the transaction off when the entry into the building is proved. A murderer, who kills the watchman, may not compel the stoppage of proof before the theft, rape, arson, etc., subsequent and connected, are narrated.

We think it proper for the state to show the act of Bavis in handing to Burleson the letter referred to some weeks before the commission of the assault. It was referred to by parties engaged in the transaction. It thus became a pertinent circumstance, supporting the proposition of full understanding and agreement and a conspiracy on the part of those engaged in this entire matter.

By a special charge, appellant sought to have the jury told that evidence of the fact that he was a member of the Ku Klux Klan could not be considered for any purpose other than as affecting the credibility of witnesses who were shown to be members of that order. We think such charge properly refused. For aught shown in the bill complaining of such refusal, the fact of appellant’s said membership may have been most material to other issues in the case. The notice received by Burleson was on Klan stationery. Burleson was chided for a threat to kill 21 Klansmen.

In this connection, we state, with reference to many bills of exception taken to questions asked various witnesses as to whether they or other defense witnesses were members of said secret order, that, in our view of the fact's of this case, and .of the testimony of several of the witnesses as to the substance of the oath supposed to have been taken by members of said order, and of the circumstances surrounding the entire transaction, said questions were proper, and that none of said bills show any error. It was shown, in the development of the case, that, while the grand jury, within the scope of its authority, was investigating this affair, parties apparently having knowledge appeared before said body and refused to answer questions concerning their membership in said organization, and were committed to jail for contempt, and remained there for a considerable length of time. As affecting the question of the conspiracy, and the reason for the acting together of appellant and the other parties composing the mob with him, we think it proper to probe into the matter of their affiliation and connection with each other in this or any other pertinent manner.

In this connection, we further observe that, in our opinion, no error was committed by the learned trial judge in charging the jury on the law of principals. There were two cars full of men who carried out and apparently planned an agreement to commit this entire assault upon Burleson. The' act of each was the act of all. The act of the man who held the pistol on Burleson while he was being whipped, and of those men who' held pistols on him while he was being, carried in the car, and of those men who beat him over the head with pistols, and who continued their assault until they left him on the square at Taylor, were, each and all of them, in law, as we view it, the acts of this appellant, and the jury had the entire right to consider each and every act of each member of the party in determining appellant’s guilt and in fixing the penalty to the crime.

By 18 bills of exception appellant presents complaints of the charge of the court. Each of these has received our attention, but in none of them do we find any error. Some were to giving the ordinary definition or definitions of assault; some to that part of the charge wherein the court told the jury that, in order the convict appellant, the state must prove beyond a reasonable doubt that a pistol was being unlawfully carried by him at the time of the alleged assault; others were to the submission of the law of principals; still others to the court telling the jury that no issue submitted to them could be decided by lot; and other exceptions were leveled at the charge for telling the jury that appellant’s guilt must be decided solely upon the law submitted and the evidence heard; also to the failure of the court to submit the law of aggravated assault. We have found nothing in any of these bills of exception whose lengthy discussion or quotation would be of any benefit.

By bill of exceptions No. 31 appellant complains of the fact that his challenge for cause to' talesman Edens was overruled, and he was compelled to exhaust a peremptory challenge upon him. Mr. Edens was a man of mature years, wlio said lie had read a Williamson county paper, and had heard the case discussed, and had an opinion formed from newspaper reading and neighborhood discussion, but that same was not a fixed opinion. He averred his readiness and willingness to lay aside such opinion and try the ease solely under the law and facts. He further averred that whether appellant was or was not, a Klansman would have no weight with him. We see no abuse of the court’s primary right and power to pass on the acceptability of this juror. McKinney v. State, 31 Tex. Cr. R. 583, 21 S. W. 683; Ashton v. State, 31 Tex. Or. R. 479, 21 S. W. 47; Ellison v. State, 12 Tex. App. 557; Invar v. State, 26 Tex. App, 115, 9 S. W. 552. The bills of exception, complaining of the court’s refusal to sustain challenge for cause to jurors Price and Carter, are based on much the same facts as the bill directed at Mr. Edens.

There are several bills of exception complaining of the fact that appellant’s counsel were not permitted to ask said jurors, who expressed themselves as having formed some kind of opinion, as to whether such opinion was unfavorable to appellant or not. We think it not proper to ask a witness, who says that he has an opinion that would or might influence his action if taken as a juror, as to which side of the case said opinion favors.

There was a question propounded to the witness Burleson touching his relationship to other members of the Burleson family. In a case in which the facts seem so ample to support the conclusion of the jury, we would not be inclined to hold the action of the trial court in permitting such evidence as of such serious nature as to call for a reversal of the case, but see no reason why such testimony should be permitted.

We perceive no error in permitting the testimony of the physicians who examined Mr. Burleson, and who testified to the condition of his body, nor to the admission of the testimony of the use of a saw to get the chain from.his neck. Proof of testimony showing that Olen Gossett, one of the parties identified as being in the cars at the time and place of the assault, owned a truck, and that the truck was seen on the road and in' the neighborhood of the assault on the day thereof, would seem to us to be admissible, in view of the fact that a truck was at the scene of the assault, and was used to convey Burleson to Taylor, after he was whipped.

In his argument to the jury, the district attorney referred to the fact that he had heard rumors of a ringer, and that he did not believe there was any ringer on this jury. This remark was excepted to, and the court instructed the jury not to consider same, and the district attorney further stated, in substance, that he did not believe there was any man on the jury who was not honest, but, if there was any one who had his head set, and was not open to reason, his fellow men could tell when they got into the jury room. Appellant insists that this argument was hurtful to his cause, and that for it the case should be reversed. To so conclude necessitates placing upon the words of the district attorney the opposite inference from that which would most readily follow from the language used. We have examined the authorities cited at length by counsel in their able brief, but find none holding that language of this character would be just cause for reversal, and this is especially so when the matter deemed hurtful is promptly cheeked, and the court instructs the jury not to let such language affect their verdict. We regret that we cannot agree with counsel in their lengthy contention that for this remark of the district attorney the case should be reversed.

There are other bills of exception complaining of various matters, each of which has been read by us, but are not deemed of erroneous character. Appellant complains that one of the jurors who sat in the trial of the case was disqualified because of a prejudgment of the ease, and the trial judge heard evidence pro and con on this issue. Appellant produced two witnesses, who testified that they heard said juror make statements, which they set forth, which indicated that he had formed an opinion. Upon cross-examination, each of these witnesses admitted no names were called, and that other matters could have been under discussion, and that the expressions used by the jurors might have had reference to other matters. The juror in question testified positively that he had made no such expression, and a third party who was present at the time corroborated said juror in the fact that he had not said what was attributed to him by the appellant’s witnesses. Other testimony was adduced, showing the high standing and good character of said jui-or. We do not think the action of the trial court, in refusing a new trial after hearing the testimony, any abuse of his discretion.

The transcript in this case contains over 600 pages, and the bills of exception are very lengthy and numerous. The various statements of fact contain nearly 400 pages, and we have gone through all of these in an earnest effort to solve the questions raised, both on the facts and under the law, as best we can.

We do not believe any reversible error was committed in the trial of the ease, and the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, X

We have re-examined the record relating to those matters disposed of in our original opinion which are challenged as erroneous in the motion for rehearing. Being of opinion proper disposition was made of them, we do not feel called upon to write further.

Complaint is made because we did not discuss bill of exception No. 11, wherein it is claimed that, in argument, the district attorney referred to the failure of defendant to testify. This bill was not overlooked. The record contains 83 bills of exception. Manifestly it was impracticable to discuss each of them. The language complained of was not a direct reference to defendant’s failure to testify; neither do we think it is brought within the rule of indirect reference announced in Boone v. State, 90 Tex. Cr. R. 374, 235 S. W. 582, as follows:

“The implication must be a necessary one; that is, one that cannot reasonably be applied to the failure of the accused to produce other testimony than his own.”

Many other parties were with accused, who were in a position to have knowledge of the matter referred to by the district attorney. The bill does not certify that these parties were unavailable as witnesses.

In his motion for rehearing, appellant asserts that the Court of Criminal Appeals of Texas was illegal and without authority to pass upon any matters at the time the opinion in this case was delivered. He bases this contention on an act of the Thirty-Ninth Legislature, c. 95, p. 269, which act authorized the Governor of the state to appoint a commission, to be composed of two attorneys having the same qualifications fixed by law for the judges of the Court of Criminal Appeals—

“which commission shall be for the aid and assistance of said court in disposing of the business before it; and shall discharge such duties as may be assigned it by said court.”

Said act further provides:

“All opinions of said commissioners shall be submitted to the Court of Criminal Appeals of Texas and shall receive the approval of said court or a majority of them, before handed down as opinions of said court, and when so approved and handed down, shall have the same weight and legal effect as if originally prepared and handed down by said Court of Criminal Appeals of Temas, and not otherwise.”

Before said act was passed, the Court of Criminal Appeals was composed of Judges W. C. MORROW, O. S. LATTIMORE, and F. L. HAWKINS, the Constitution providing that the court should be composed of three judges. The opinion in the instant case was prepared by Judge LATTIMORE, and concurred in by the other two members of the court, without participation of the commissioners. It is appellant’s contention that the commission has become a part of the court, in opposition to the Constitution limiting the court- to three members, and therefore that all the court’s acts are void. As we understand it, this contention arises from no wording of the act creating the commission, but simply from the manner in which the court works with and through the commission. The court has the commissioners sit with it when cases are submitted and argument is heard, in order that they may have the benefit of argument in all cases; it not being known at such time which cases will be assigned to 'the commission. This gives the court a general knowledge of the issues in cases which are subsequently assigned to the commission. The court requires the commissioners to consult between themselves upon opinions prepared by'either of them, and, if they agree thereon, the opinions are submitted to the court on regular consultation days; the commissioners being present with the court at such consultation. In this way the court has the benefit of the advice of the commissioners, and they likewise have the benefit of the views of the court upon opinions which may be presented at such consultation. If the opinions prepared by the commission are approved by the court, they become the opinions of the court. ' If the commissioners themselves do not agree in cases assigned them, the case is withdrawn from the commission and disposed of by the court itself, or, if the court does not approve an opinion submitted by the commission, it may be referred back to them for modification to meet the views of the court, or it may be withdrawn, and one of the members of the court prepares the opinion. The details of the working of the commission is for the convenience, not only of the court, but of the commission itself, and for the mutual benefit of both. Appellant has furnished us with no authority to support his position, and we must confess our inability to discover any merit therein. Neither of the commissioners prepared the opinion in the instant case, nor participated in any way in the disposition of it.

The validity of the court’s judgments, based upon opinions prepared by the commission and approved by the court, is not here involved, but, as upholding their validity, we refer to Henderson v. Beaton, 52 Tex. 29; Stone v. Brown, 54 Tex. 330; McKenzie et al. v. Withers et al., 109 Tex. 255, 206 S. W. 503; People v. Hayne, 83 Cal. 111, 23 P. 1, 7 L. R. A. 348, 17 Am. St. Rep. 211. Prom the syllabus in the latter case we quote:

“The power vested in a Supreme Court Commission, appointed by the court to examino causes submitted to the court, and to report facts or conclusions in the form of opinions to it for its judgment, is not judicial, within the meaning of the Constitution; and, when the court retains the inherent power, not only to decide, hut to make all binding orders or judgments in such cases, this constitutes the only exercise of judicial power.”

The motion for rehearing is overruled.

On Motion for Stay of Mandate.

EATTIMORE, J,

Applicant files an amended motion, asking this court to grant a stay of mandate herein for 60 days, so that his application for a writ of certiorari to the Supreme Court of the United States for a review of our decision herein can be acted upon. It is stated in the motion that the Presiding Judge, of this court, being of opinion that no federal question was involved, refused to grant a writ of error herein; hence the necessity for certiorari and for this motion. Applicant accompanies his motion by a copy of his petition for the writ of certiorari, addressed to the Supreme Court of the United States, and our decision on this motion will necessarily call for some expression of our views relative 'thereto.

A necessary predicate to invoke federal review is that the state court has been first given opportunity to pass on the question as to whether there was involved in the particular matter any federal question. Coffee v. Groover, 123 U. S. 1, 8 S. Ct. 1, 31 L. Ed. 51; Illinois Cent. R. v. Mulberry, Coal Co., 238 U. S. 275, 35 S. Ct. 760, 59 E. Ed. 1306; Cincinnati, etc., Ry. Co. v. Slade, 216 U. S. 78, 30 S. Ct. 230, 54 L. Ed. 390; Winona, etc., Land Co. v. Minnesota, 159 U. S. 540, 16 S. Ct. 88, 40 L. Ed. 252; Bolln v. Nebraska, 176 U. S. 83, 20 S. Ct. 287, 44 L. Ed. 382; Erie Ry. Co. v. Purdy, 185 U. S. 148, 22 S. Ct. 605, 46 L. Ed. 847. This is always true when required under the practice of the particular state. Miller v. Texas, 153 U. S. 535, 14 S. Ct. 874, 38 L. Ed. 812.

While applicant claims that two federal questions are presented in his petition for certiorari, but one of these was asserted as involving a federal question when his cause was before the state court, viz. that the act of the Legislature in creating a commission to aid the Court of Criminal Appeals of Texas deprived applicant of a trial under the due process guaranteed by the Fifth Amendment to the Constitution of the United States. The other contention of applicant in his said petition, viz. that the statute defining aggravated assault and that creating the offense of assault with prohibited weapons are in conflict, was presented to this court in the motion for rehearing herein, but not as in any way contrary to or violative of any federal statute or provision of the federal Constitution, and when before us the matter was not considered, from any angle as raising a federal question.

As to the claim of applicant that the Legislature, by its act creating a commission to aid this court, in any sense destroyed or affected the court’s power or right to pass upon appeals regularly before it, and that one whose case on appeal was decided, both on original presentation and rehearing, by members of the court itself, without act, interference, or intervention of the members of the commission, was thus deprived of a trial in accordance with due process of the law of the land, seems to this court to present so little likelihood of being held by the Supreme Court of the United States as raising a federal question that we would not feel warranted in granting a stay of the mandate herein.

As stated above, the supposed conflict of the two state statutes referred to was not presented in this court as involving a federal question; but, if it had, this court would likely have held that a decision of the question of such conflict did not involve a federal question. This would be our construction of the numerous decisions on that point handed down by the Supreme Court of the United States. Leeper v. Texas, 139 U. S. 462, 11 S. Ct. 577, 35 L. Ed. 225; Smith v. Jennings, 206 U. S. 276, 27 S. Ct. 610, 51 L. Ed. 1061; Medberry v. Ohio, 65 U. S. (24 How.) 413, 16 L. Ed. 739; Layton v. Missouri, 187 U. S. 356, 23 S. Ct. 137, 47 S. Ct. 214. Proper construction of the Constitution and laws of a state is not for the Supreme Court. Bimetallic Inv. Co. v. State Board of Equalization, 239 U. S. 441, 36 S. Ct. 141, 60 L. Ed. 372. The meaning derived by construing together several state statutes is conclusive on the federal Supreme Court. Int. Harvester Co. v. Kentucky, 234 U. S. 216, 34 S. Ct. 853, 58 L. Ed. 1284. The construction of a state statute is not a federal question. Johnson v. Life Ins. Co., 187 U. S, 491, 23 S. Ct. 194, 47 L. Ed. 273. When the applicability of one state statute depends on the construction of .another such law, the state court’s action presents no federal question. Powell v. Brunswick, 150 U. S. 433, 14 S. Ct. 166, 37 L. Ed. 1134.

It would -seem, under ordinary rules of construction, that, if this court had concluded the two statutes in irreconcilable conflict, it would have given effect to the one last enacted, as having by implication repealed the first.

Being unable to agree that applicant’s petition for certiorari presents any federal question, and in view of the fact that, if the Supreme Court of the United States is of a different view, it has the power to stay the proceedings herein, the applicant’s motion will be denied. 
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