Graham v. State

• Decision Date: 29 May 1901
• Citation: 63 S.W. 558
• Parties: GRAHAM v. STATE.
• Court: Texas Court of Criminal Appeals

63 S.W. 558

GRAHAM v. STATE.

Court of Criminal Appeals of Texas.

May 29, 1901.

Appeal from district court, Robertson county; J. L. Goodman, Special Judge.

Eugene Graham was convicted of murder in the second degree, and he appeals. Reversed.

Campbell & Gann, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 35 years' confinement in the penitentiary.

In the view we take of this case, it is only necessary to consider one question. Appellant, in his motion for new trial, urges that the Honorable J. L. Goodman, the special judge who tried this case, was disqualified by reason of the fact that he had been counsel for appellant. This matter is presented in the shape of affidavits attached to the motion. James M. Brown in his affidavit states that he was an uncle of Guy and Eugene Graham; for the purpose of employing assistant counsel in the case for defendant, affiant secured the services of J. L. Goodman, an attorney of Franklin, Robertson county, who sat as special judge in this trial; that affiant and Goodman agreed upon the fee that should be paid for his services as attorney for the said Grahams, and affiant agreed to execute and deliver to said Goodman a joint note for the amount so agreed upon, and that afterwards affiant regarded him as counsel for the said Grahams, and so treated and consulted with him; that, as such attorney, affiant afterwards consulted and advised with said Goodman concerning the management and conduct of the defense of the case, in which such conversation the facts were freely and unreservedly discussed, and the said Goodman advised as to the best defense to set up for the Grahams, and how to establish this defense. The son of J. M. Brown corroborates the statement of his father, and says he had a conversation with said Goodman as to his employment as attorney for the Graham boys, in which Goodman told him he was in the case (meaning in the case against the Grahams for the murder of A. L. Boswell), and affiant's father understood it, and he was working quietly in the case, and talked freely with affiant about the facts of the case. The affidavits of George W. Glasscock, J. D. Gann, and W. O. Campbell, attorneys for defendant (the first being an uncle by marriage of appellant), all show that Goodman participated with them in the discussions and consultations in regard to the facts of the case, and they regarded and treated him as an attorney in the case on several occasions prior to the finding of the indictment. Appellant's affidavit shows that Goodman visited him in jail, talked with him freely about the facts, and he consulted with him, believing he was employed as attorney for the defense. Hon. J. L. Goodman stated that he sat as special judge in the trial of appellant. He denies that he was of counsel for appellant, or his brother Guy Graham, and never represented either of said parties; that the relation of attorney and client never existed between himself and appellant; that he never, as attorney for appellant, advised him, or either of the Grahams, about their defense. He then states "that soon after the shooting of A. L. Boswell, and before the death of the said Boswell, which occurred about 26 days after he was shot, affiant was called upon by J. M. Brown (who files an affidavit), an uncle of appellant, with reference to securing his services in representing appellant as an attorney; that witness named said Brown a fee that he would charge for his services; that Brown told affiant at that time he would arrange to pay a part of the fee demanded, and stated he could not and would not pay any more; that appellant and his brother owned some horses, and they ought to be able to arrange the balance of the fee; that affiant, at Brown's request, went to the jail where the parties were then confined, for the purpose of arranging with them for the fee, as suggested by Brown; that while there the Grahams commenced telling him about the case; that he told them at the time he was not there to hear about the case, and to advise with...