Harris v. State

• Decision Date: 13 January 1926
• Docket Number: (No. 9426.)
• Citation: 288 S.W. 450
• Parties: HARRIS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 450

288 S.W. 450

HARRIS v. STATE.

(No. 9426.)

Court of Criminal Appeals of Texas.

January 13, 1926.

State's Rehearing Denied November 24, 1926.

Commissioners' Decision.

Appeal from District Court, Fannin County; Ben H. Denton, Special Judge.

Kid Harris was convicted of murder, and he appeals. Reversed and remanded.

J. I. Warren, of Honey Grove, and Cunningham, McMahon & Lipscomb, of Bonham, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

BERRY, J.

The offense is murder, and the punishment is 20 years in the penitentiary.

The record discloses that the trial took place before a special judge. The statute requires that, before a special judge shall enter upon his duties, he shall take the oath of office required by the Constitution, and his selection and the fact that the oath of office has been administered to him shall be entered upon the minutes of the court as a part of the record in the cause. The record in the instant case is silent as to any oath of office having been taken by the special judge. That the record must reveal that the oath of office has been taken has been held in many cases. Salazar v. State, 102 Tex. Cr. R. 189, 276 S. W. 1105.

For the error above indicated, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

At the trial of the appellant's case, Hon. Ben H. Denton presided as special district judge. His appointment was made by the Governor, the proclamation appointing him reciting that Hon. George P. Blackburn, Judge of the Sixth judicial district of Texas, had certified his disqualification in certain named cases, among them that of the appellant. The proclamation proceeds:

"Now, therefore, I, Miriam A. Ferguson, Governor of Texas, by virtue of the authority vested in me by the Constitution and laws of this state, do hereby appoint Hon. Ben H. Denton of Lamar county, Tex., he being a person learned in law, special judge to try and determine the above styled and numbered causes."

The appointment was duly certified by the secretary of the state and oath of office was taken.

Upon this appeal, the validity of the appointment and the authority of Hon. Ben H. Denton to preside as special judge of the court, in which the appellant was tried, is challenged. In article 5, § 11, of the Constitution of Texas, we find the following:

"When a judge of the district court is disqualified by any of the causes above stated, the parties may, by consent, appoint a proper person to try said case; or, upon their failing to do so, a competent person may be appointed to try the same in the county where it is pending in such manner as may be prescribed by law."

The statutory provisions bearing upon the subject are the following:

"No change of venue shall be necessary because of the disqualification of a district judge, but he shall immediately certify his disqualification to the Governor, whereupon the Governor shall designate some district judge in an adjoining district to exchange and try such case or cases, and he shall notify both of said judges of such order; and such judges shall exchange districts for the purpose of disposing of such case or cases. If said judges be prevented from exchanging districts, the parties or their counsels may agree upon an attorney of the court for the trial thereof, and failing to agree, such fact shall be certified to the Governor by the district judge, or the special judge, whereupon the Governor shall appoint a person legally qualified to act as judge in the trial of the case." Article 1885, R. S. 1925.

"Whenever a special judge is agreed upon for the trial of a particular cause, the clerk shall enter in the minutes of the court, as a part of the proceedings in such cause, a record showing:

"(1) That the judge of the court was disqualified to try the cause; and

"(2) That such special judge (naming him) was, by consent agreed upon by the parties to try the cause; and

"(3) That the oath prescribed by law has been duly administered to him." Article 1886, R. S. 1925.

When it appears from the record that a criminal case is tried before a special judge, it is essential that the record show his authority to act and his oath of office. On this subject, we quote from the opinion of Judge Lattimore in the case of Dawes v. State, 87 Tex. Cr. R. 452, 222 S. W. 560, as follows:

"Nothing appears in the record showing how any special judge became qualified or authorized to act herein, or that any oath of office was administered to him. The uniform holding of this court seems to be that such facts must appear in the record. McMurry v. State, 9 Tex. App. 208; Thompson v. State, 9 Tex. App. 649; Snow v. State, 11 Tex. App. 99; Perry v. State, 14 Tex. App. 167; Smith v. State, 24 Tex. App. 297 [6 S. W. 40]; Blanchette v. State, 29 Tex. App. 46 [14 S. W. 392]; Weatherford v. State [Tex. Cr. App.] 28 S. W. 814; Reed v. State, 55 Tex. Cr. R. 138 [114 S. W. 834]; Summerlin v. State, 69 Tex. Cr. R. 275, 153 S. W. 890."

In title 7, chapter 4, C. C. P., are found the statutory provisions as to the manner of selection of special judges and the things that the record must reveal. In addition to the articles quoted above, we find article 1891, R. S. 1925, touching the election of a special judge, which reads as follows:

"The clerk shall enter upon the minutes of the court a record of the election of such special judge, showing:

"(1) The names of all the practicing lawyers present and participating in such election.

"(2) The fact that the public proclamation was made at the courthouse door that such election was about to take place.

"(3) The number of ballots polled at such election and the number polled for each person, and the result of the election.

"(4) That the oath prescribed by law has been duly administered to the special judge."

In the present case, the...