Koll v. State

• Decision Date: 05 November 1941
• Docket Number: No. 21751.,21751.
• Citation: 157 S.W.2d 377
• Parties: KOLL v. STATE.
• Court: Texas Court of Criminal Appeals

Page 377

157 S.W.2d 377

KOLL v. STATE.

No. 21751.

Court of Criminal Appeals of Texas.

November 5, 1941.

Rehearing Denied January 7, 1942.

Commissioners' Decision.

Appeal from District Court, Grayson County; Tom Suggs, Judge.

L. H. Koll was convicted of murder, and he appeals.

Judgment reversed, and cause remanded with instructions.

Fred C. Varner, Jr., and G. C. Harney, both of Sherman, for appellant.

Ralph Elliott, Cr. Dist. Atty., of Sherman, Charles Gullett, Asst. Cr. Dist. Atty., of Denison, R. S. Watson, Asst. Cr. Dist. Atty., of Whitesboro, and Spurgeon E. Bell, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

The offense is murder; the punishment, death.

The jurisdiction of the Fifty-Ninth District Court of Grayson County, in which this case was tried, to render the judgment of conviction is challenged.

Grayson County, where the offense was alleged to have been committed on December 20th, 1940, is situated in two Judicial Districts, the Fifteenth and the Fifty-Ninth. As to said county, said courts have concurrent jurisdiction. Cases pending upon the docket of each court may be transferred to the other, at the discretion of the judge thereof, and to effectuate which, an order to that effect upon the minutes of the court making the transfer is all that is necessary or required, as provided in Article 199, Revised Civil Statutes, Vernon's Ann. Civ. St. art. 199, Districts 15, 59, as follows:

"The District Courts of the Fifteenth and Fifty-ninth Judicial Districts, in the County of Grayson, shall have concurrent jurisdiction with each other throughout the limits of Grayson County of all matters civil and criminal of which jurisdiction is given to the District Courts by the Constitution and laws of this State; provided, that the Judge of the Fifty-ninth Judicial District may impanel the Grand Jury in Grayson County when, in the discretion of said Court, it is deemed by him proper so to do he may draw and impanel such Grand Jury for any terms of his Court as provided by law for other District Courts for impaneling Grand Juries. Either of the Judges of District Court of Grayson County may, in their discretion, either in term time or in vacation, transfer any case or cases, civil or criminal, that may at any time be pending in his Court, to the other District Court in Grayson County, by order or orders entered upon the minutes of the Court making such transfer; and where such transfer or transfers are made, the Clerk of said Court shall enter such case or cases upon the dockets of the Court to which such transfer or transfers are made, and when so entered upon the docket, the Judge of said Court shall try and dispose of said cases in the same manner as if such cases were originally in said Court. The Clerk of the District Court of Grayson County, as heretofore constituted, and his successor in office shall be the Clerk of both the Fifteenth and Fifty-ninth District Courts in said Grayson County, and shall perform all the duties pertaining to the clerkship of both of said Courts."

At the time of the commission of the alleged offense, the Honorable R. C. Slagle, Jr., was the duly elected, qualified and acting Criminal District Attorney of Grayson County, and as such officer represented the State in personally conducting all or a part of the investigation incident to the alleged crime, up until January 1st, 1941, at which time he duly qualified as, and became the Judge of, the Fifteenth Judicial District, having been elected to that office at the previous November General Election.

A regular term of the Fifteenth District Court convened on the first Monday in January, 1941, with the said R. C. Slagle, Jr., as the Judge thereof presiding, who, on the same day, duly organized and impaneled a grand jury. On January 8th, 1941, that grand jury returned the indictment in this case.

On January 14th, 1941, Judge Slagle transferred the case to the Fifty-Ninth District Court by the following order:

                                      |  In the 15th District
                "The State of Texas   |    Court
                 vs.     No. 23932     >          of
                L. H. Koll            |  Grayson    County
                                      |    Texas
                "The State of Texas   |
                                       > January 14, 1941
                "County of Grayson    |
                

"On this day the following entitled and numbered cause were transferred to the Honorable 59th District Court.

                           "(Signed) R. C. Slagle, Jr
                                             "Judge."
                

The case, upon being so transferred to the Fifty-ninth District Court, came on for trial before the Honorable Tom Suggs, Judge Presiding, when appellant filed and presented a motion attacking the jurisdiction of that court, alleging that the jurisdiction of the offense was in the Fifteenth District Court. Appellant's contention in this respect may be stated as follows: That Judge Slagle, having been of counsel for the State in the case, was disqualified, under the Constitution and laws of this State, from sitting as a judge in the case, and that the order transferring the case was such an act as constituted his sitting in the case. The motion being overruled, appellant excepted and the trial proceeded to judgment of conviction. The constitutional provision referred to is contained in Art. 5, Sec. 11, Constitution of Texas, Vernon's Ann. St. which reads as follows:

"No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case. When the Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals, or any member of either, shall be thus disqualified to hear and determine any case or cases in said court, the same shall be certified to the Governor of the State, who shall immediately commission the requisite number of persons learned in the law for the trial and determination of such cause or causes. 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.

"And the District Judges may exchange districts, or hold courts for each other when they may deem it expedient, and shall do so when required by law. This disqualification of judges of inferior tribunals shall be remedied and vacancies in their offices filled as may be prescribed by law."

The statute upon the subject is Art. 552, Code of Criminal Procedure of this State, which reads as follows: "No judge or justice of the peace shall sit in any case where he may be the party injured, or where he has been of counsel for the State or the accused, or where the accused or the party injured may be connected with him by consanguinity or affinity within the third degree." Under these authorities, it is clear that a judge is prohibited from sitting in any case "when he shall have been counsel in the case."

Two questions are thus here presented for our determination:

1. Was Judge Slagle disqualified by reason of having been counsel for the State in the case?

2. Did the order of transfer constitute such a judicial act on his part as was within the constitutional and statutory inhibition?

A negative answer to either of these questions would render untenable appellant's contention. If each of these questions is to be answered in the affirmative, then the Fifty-Ninth District Court was without jurisdiction of the case and the order of transfer was void, rendering the judgment of conviction a nullity.

As to the first question, it is not disputed in this record but that Judge Slagle, while district attorney, acted as counsel for the State in this case. The bill of exception upon this subject certifies to facts which show that he, as the district attorney, did in fact actively participate in the investigation and preparation of the case as counsel for the State, prior to his qualifying as judge. These facts were established and so certified by and as a result of a stipulation of the parties to that effect.

It follows, therefore, that Judge Slagle was in fact disqualified from sitting in or acting in the capacity of a judge in this case. See Terry v. State, Tex.Cr.App., 24 S.W. 510; Patterson v. State, 83 Tex. Cr.R. 169, 202 S.W. 88.

The pivotal question presented, then, is whether the act of Judge Slagle in transferring the case was such a judicial act as he was prohibited, by reason of his disqualification, from performing. The distinction between what is or is not a judicial act within the inhibition of the constitution seems now to be definitely established and is to the effect that a disqualified judge may perform any and all acts as are ministerial, and is prohibited from performing any and all acts that call for the exercise of a judicial discretion by him. 25 Tex.Jur. p. 298, § 53; Wallace v. State, 138 Tex.Cr.R. 625, 138 S.W.2d 116. As coming within the term "ministerial act", we find that a judge may, in a case in which he is disqualified, enter the following orders: He may make orders preliminary to the trial of the case (Cock v. State, 8 Tex.App. 659); he may transfer such a case to a court having jurisdiction thereof (Oxford v....