Patterson v. State

• Decision Date: 10 March 1920
• Docket Number: (No. 5623.)
• Citation: 221 S.W. 596
• Parties: PATTERSON v. STATE.
• Court: Texas Court of Criminal Appeals

221 S.W. 596

PATTERSON v. STATE.

(No. 5623.)

Court of Criminal Appeals of Texas.

March 10, 1920.

Rehearing Denied May 12, 1920.

Appeal from Criminal District Court, Tarrant County; John J. Hiner, Special Judge.

N. C. Patterson was convicted of murder, and he appeals. Affirmed.

Marvin B. Simpson and John W. Estes, both of Ft. Worth, and Preston Martin, of Weatherford, for appellant.

Jesse M. Brown, Dist. Atty., of Ft. Worth, and Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, J.

The conviction was for murder, and punishment fixed at 25 years' confinement in the penitentiary. Former appeal reported in 202 S. W. 88.

The case was tried before a special judge. The legality of his appointment is questioned. Some weeks before the trial there was made, reduced to writing, signed by the attorneys, and filed in the case, an agreement containing the following:

"It is therefore agreed by and between the state of Texas, plaintiff in said cause, acting through its duly authorized agent, the Honorable Jesse M. Brown, county attorney of Tarrant county, Texas, and the defendant, N. C. Patterson, acting through his attorneys of record, Messrs. Simpson & Estes, that the Honorable John J. Hiner, a member of the bar of Tarrant county, Texas, is a proper and suitable person to sit in said cause, and is in no way disqualified to so act; and the parties aforesaid hereto sign their names, as aforesaid, in testimony of this agreement that the said John J. Hiner, is in all respects entirely acceptable and agreeable to said parties to sit in said cause, and said parties hereby respectfully request his excellency, W. P. Hobby, Governor of the State of Texas, to appoint the said John J. Hiner of Fort Worth, Texas, as special judge in this cause."

Hon. Geo. E. Hosey, the regularly elected judge of this district, having been of counsel in the case, was disqualified by the terms of the Constitution, and, without calling upon any other judge to exchange districts, the Governor designated by appointment Hon. John J. Hiner, who, after regularly qualifying, sat in the case.

The authority of Judge Hiner is challenged on the ground that his selection and appointment was not in accord with article 618, C. C. P., which is as follows:

"Whenever any case or cases, civil or criminal, are pending in which the district judge is disqualified from trying the same, no change of venue shall be made necessary thereby; but the judge presiding shall immediately certify that fact to the Governor, whereupon the Governor shall designate some district judge in an adjoining district to exchange and try such case or cases, and the Governor shall notify both of said judges of such order; and it shall be the duty of said judges to exchange districts for the purpose of disposing of such case or cases, and, in case of sickness or other reasons rendering it impossible to exchange, then the parties or their counsels shall have the right to select or agree upon an attorney of the court for the trial thereof; and, in the event the district judges shall be prevented from exchanging districts and the parties and their counsels shall fail to select or agree upon an attorney of the court for the trial thereof, which 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."

State's counsel insists that section 11 of article 5 of the Constitution supports the selection of Judge Hiner. From it we quote:

"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 interior tribunals shall be remedied, and vacancies in their offices filled, as may be prescribed by law."

We are referred by the appellant to Kruegel v. Nash, 72 S. W. 601; Alley v. Mayfield, 62 Tex. Civ. App. 231, 131 S. W. 295; Savage v. Umphres, 62 Tex. Civ. App. 209, 131 S. W. 291; Summerlin v. State, 69 Tex. Cr. R. 275, 153 S. W. 890; and Oates v. State, 56 Tex. Cr. R. 571, 121 S. W. 370. State's counsel refers to Early v. State, 9 Tex. App. 476; Thompson v. State, 9 Tex. App. 662; Reed v. State, 55 Tex. Cr. R. 138, 114 S. W. 834; Rosetti v. Benavides, 195 S. W. 210; Dunn v. Bank, 181 S. W. 699. Light is thrown upon the question by all of the cases, though in none of them did the facts involved require the decision of the question now before us.

In Kruegel v. Nash, the effort was to compel by mandamus the disqualified district judge to permit the selection of a special judge by agreement, and to prevent him from certifying his disqualification to the Governor. The relief was denied. No special judge had been agreed upon, nor did it appear that such agreement could be made.

In Alley v. Mayfield, the district judge certified his disqualification to the Governor, who called upon the judge of another district to exchange. This was done, and the judgment rendered was attacked. The court said the material question was "whether the Governor was authorized to direct the Hon. J. N. Browning to exchange with the Hon. L. S. Kinder, whose district adjoined that of Judge Browning, and thus empower the said Browning to try this case." The court held the judgment valid.

A similar ruling was made in Savage v. Umphres, 62 Tex. Civ. App. 209, 131 S. W. 292.

In Summerlin v. State, it was held that the absence of a district judge who was not disqualified did not authorize the selection of a special judge by agreement of the parties.

In the case of Oates v. State, the district judge was disqualified, and the special judge was appointed by the Governor. There was no agreement of the parties. At the time the Oates Case was decided, the statute which we have quoted did not contain the language in italics. The law previously existing, giving the Governor authority to appoint a district judge, had been repealed by chapter 12 of the Acts of the 25th Legislature (First Sp. Sess. 1897) p. 39; and, there being neither in the Constitution nor in the statute books any authority given the Governor to appoint a special judge, such an appointment was held void.

Stress is laid by the appellant upon the language used by the writers of the opinions in the cases mentioned by way of argument in support of the conclusion reached in the decision of the cases. Expressions of this character are valuable and persuasive, but the opinions rendered are conclusive alone of the questions involved, and in no case of which we are aware has the appointment of a special judge by consent of the parties been held invalid when the district judge was disqualified to try the case.

When a judge of the district court is disqualified to sit in a case by any of the causes mentioned in the Constitution, "the parties may, by consent appoint a proper person to try said case." Article 5, § 11, Constitution. The written agreement makes it manifest that the parties have by consent appointed Judge Hiner to try this case. True it is that the Governor appointed him, but this does not, in our judgment, detract from the force of his selection by the consent of the parties. Unless the privilege of the parties to appoint a special judge by consent is abridged or qualified by the statute quoted, their action must hold. The statute directs: First, the judge to certify his disqualification to the Governor; second, the Governor to designate some judge to act; third, that it shall be the duty of such judge to act; and, fourth, it provides that, if by reason of sickness or other cause it is "impossible" to effect the exchange of districts the parties may select or agree on a special judge.

We discern no want of power in the Legislature to impose upon the Governor and the judges the duties named in these statutes. The Constitution expressly authorizes the requirement by law of the judges to exchange districts, and in terms permits the making of a law prescribing the method of appointment of a special judge where occasion arises and the litigants fail to agree upon one. The decisions discussed correctly affirm the existence of this power. Whether that part of the statute imposing different and more restrictive conditions upon the rights of the parties to select a special judge than those designated in the Constitution renders void such selection, when made in accord with the conditions which the Constitution prescribes, is a different question. Appellant insists that such view harmonizes with the opinion written by Judge Ramsey in deciding the Oates Case, supra. Doubtless there are expressions therein that support this contention. The major part of that opinion, however, is addressed to maintaining the proposition that, conceding the invalidity of the restriction upon the right of the parties to agree, there was sufficient vitality in other parts of the of 1897, supra, to repeal the prior law which authorized the Governor to appoint a special judge. The conclusion reached by the majority in the final decision of the Oates Case was undoubtedly sound, because there was no effort of the parties to agree upon a special judge, and there was no law which authorized the Governor to appoint one. The concurrence of the presiding judge is limited to the result. Taking the opinion of Judge Ramsey as a whole, its interpretation by the appellant is in conflict with the language of Judge Ramsey expressed in the opinion limiting its scope, which language we quote:

"Again, it should be remembered that this is not a case in which a citizen is asserting the constitutional right to agree on a judge to try his...