Davis v. State
| Decision Date | 01 January 1876 |
| Citation | 44 Tex. 523 |
| Parties | ROSS DAVIS v. THE STATE. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Goliad. Tried below before the Hon. M. N. Shive, special judge.
Davis was indicted February 6, 1875, for theft of “ten fencing posts, of the value of two dollars and fifty cents, the property of D. D. Claiborne.” At the June Term of the court an entry was made in the case on the minutes of the court reciting that “Daniel D. Claiborne, judge of 17th district, being disqualified to sit in this case, being the party alleged to have been injured, and the parties having selected and agreed that M. N. Shive, a member of the bar, should sit in the case as special judge, and he having taken the constitutional oath,” &c., the case was continued. At the October Term thereafter defendant was tried and convicted before the special judge, the punishment being fixed at five days' imprisonment and a fine of thirty dollars.
Motions for new trial and in arrest of judgment, for want of authority in the special judge, were overruled, and defendant appealed.
Lane & Payne, for appellant.
George Clark, Attorney General, for the State.
The record properly recites the ground of disqualification of the presiding judge of the District Court, the agreement of the parties to substitute a special judge in his place, and the fact that the special judge took the oath of office before entering upon his duties in the trial of the case.
The district attorney has the power to make such an agreement for the State in a criminal case pending in his district. In such a case the State is a party litigant, and speaks and acts through its appropriate district attorney, the same as any other party does through an attorney.
This power is embraced in the authority expressly conferred on him “to conduct all prosecutions for crimes and offenses cognizable in such court.” (Paschal's Dig., art. 182.)
It is simply one of the modes prescribed by the Constitution for the appointment of a judge, when the presiding judge is disqualified to try a particular case, and when necessary and proper in conducting a criminal prosecution in a court in his district it may be done by him, acting for the State in his official capacity and under the responsibilities of his position. (Const. of 1869, sec. 11, art. 5.)
This, it is believed, has been the construction of the Constitution and laws by the bench and bar of this State, as evidenced by a uniform practice in the courts, from the earliest...
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Williams v. Pennsylvania
...which his slave was the defendant). But the judge's pecuniary interest had to be directly implicated in the case. See, e.g., Davis v. State, 44 Tex. 523, 524 (1876)(deciding that a judge, who was the victim of a theft, was not disqualified in the prosecution of the theft); see also T. Coole......
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...of Texas; accordingly, he participated in the decision of the cause. Another case which I think is in point is that of Davis v. State, 44 Tex. 523: Soon after the adoption of the present Constitution, the Judge of the District Court of Jefferson County announced that he "was embarrassed" to......
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...not being a party thereto or liable to any loss or profit therefrom, otherwise than as any other person in the body politic." Davis v. State, 44 Tex. 524. Soon after the adoption of the present Constitution, the judge of the district court of Jefferson county announced that he was embarrass......