Willson, J.
The defendants were convicted of murder in the first degree, and the death penalty assessed against them. At the threshold of the case we are confronted with a novel question, which, if the position of defendants’ counsel be correct, renders void the whole proceeding from the beginning.
The 13th day of September, 1880, was the day upon which a regular term of the District Court for Hidalgo county should have convened. The judge failed to appear on that day. He also failed to appear on the next two days succeeding. The court, on those days, was opened and adjourned from day to day by proclamation of the sheriff. On the 16th of September, 1880, the fourth clay of the term, the sheriff by proclamation opened the court in-the morning. The judge did not still make his appearance. At 13 o’clock on that day, the sheriff by proclamation adjourned the court until the next regular term in course. Between 6 o’clock and 8 o’clock P. M. of that day, the judge of the court arrived, and opened court, and rescinded and set aside tlie proceeding adjourning the court until the next term in course, and proceeded to organize a grand jury, and hold a regular term of the court, and the grand jury thus organized presented the indictment under which the defendants were afterwards convicted in Cameron county, the venue of the case having been changed to Cameron county. The proceedings of the judge in organizing the grand jury, holding a term of court, receiving the indictment, etc., were objected to by defendants at the time, and their objections appear fully in the record, and are properly presented for our consideration.
The statute provides that “should the judges of any District Court not appear at the time appointed for holding the same, and should no election of a special judge be had, the sheriff of the county, or in his default any constable of the county, shall adjourn the court from day to day, for three days; and if the judge should not appear on the morning of the fourth day, and should no special judge have been elected, the sheriff or constable, as the case may be, shall adjourn the court until the next regular term thereof.” (Rev. Stats. art. 1128.)
In the case before us, there was no special judge elected. The judge did not appear until the evening of the fourth day of the term, after the court had been duly and in accordance with the statute adjourned by the sheriff until the next regular term. This court is now called upon to determine the validity of the proceeding, and we are not doubtful in our opinion of it. We think the action of the judge in opening the court, and proceeding to hold a regular term of the court, after the expiration of the time positively fixed by law for the holding of the court, was without authority of law, and that all proceedings had at such unauthorized term are absolutely void. If a judge could proceed to hold a term of his court six hours after that term by law had expired, he could as well proceed to hold it six days, or six weeks thereafter. When the judge failed to appear and open his court on the morning of the fourth day of the term, that term of the court expired by operation of law, and he had no legal authority thereafter to hold the court. We very much regret that our view of the law compels us to hold null the proceedings in this case, as the defendants have been convicted, and perhaps justly, of a most heinous murder. But it is our duty to expound the law as we find it, and to adhere to the expressed will of the Legislature, let the consequences be what they may.
Because the entire proceedings in this case are, in our opinion, without authority of law, and void, the judgment of conviction is reversed, and the indictment dismissed.
Reversed and dismissed.