Richardson v. State

• Decision Date: 29 February 1928
• Docket Number: (No. 11153.)
• Citation: 4 S.W.2d 79
• Parties: RICHARDSON v. STATE.
• Court: Texas Court of Criminal Appeals

4 S.W.2d 79

RICHARDSON v. STATE.

(No. 11153.)

Court of Criminal Appeals of Texas.

February 29, 1928.

Commissioners' Decision.

Appeal from Harris County Court at Law; Ben F. Wilson, Judge.

C. F. Richardson was convicted of libel, and he appeals. Affirmed.

Earle Adams, Jr., of Houston, Tex., for appellant.

Heidingsfelder, Kahn & Branch, of Houston, and A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Offense, libel; penalty, fine of $750.

This prosecution was in the county court at law of Harris county, the jurisdiction of which court was enlarged by an act of the Thirty-Third Legislature so as to include such misdemeanor cases as the regular county courts had under the Constitution. See Acts of Thirty-Third Legislature, pp. 10, 11. Under the terms of the said law, the county judge of said court was allowed as compensation the same fees and costs in criminal cases as are now provided by the general laws of the state for judges of the county courts having criminal jurisdiction.

The only question properly presented for review on this appeal is the alleged disqualification of the judge of the said county court at law of Harris county by reason of his pecuniary interest, the appellant claiming that he is "deprived of due process of law under the Fourteenth Amendment to the United States Constitution." The contention is made, as we understand it, that the judge's fee is directly dependent upon an actual trial and disposition of cases in his court, and therefore a motion to quash an information or indictment before him, if sustained, results necessarily in his not receiving compensation; whereas, if same is overruled, and the case actually tried and disposed of, he will receive a fee of $3 under article 1052, C. C. P. 1925. The last-mentioned article of the Code of Criminal Procedure reads as follows:

"Three dollars shall be paid to the county judge by the county for each criminal action tried and finally disposed of before him. Such judge shall present to the commissioners' court of his county, at a regular term thereof, a written account specifying each criminal action in which he claims such fee, which account shall be certified to be correct, by such judge and filed with the county clerk. The commissioners' court shall approve such account for such amount as they may find to be correct, and order a draft to be issued upon the county treasurer in favor of such judge for the amount so approved."

It was said in Brackenridge v. State, 27 Tex. App. 528, 11 S. W. 630, 632 (4 L. R. A. 360):

"A dismissal of a case is to send it out of court without a trial upon any of the issues involved in it. It is a final disposition of that particular case, but not a trial of it."

There might be such issues tried and disposed of in a motion to quash as would amount to a final disposition and trial of a case and discharge of the accused. We can see no reason to doubt that in such a case the county judge would be entitled to his fee, payable, however, by the county. In no case under the Texas statute is a defendant liable for any costs payable as a fee to the county judge in case of conviction. We will dispose of the question, however, upon the assumption that there do exist cases in which the county judge upon sustaining a motion to quash the information or indictment is not entitled to any fee, and that he would be so entitled to the $3 from the county allowed him under article 1052, above quoted if such motion were overruled and the case actually tried and finally disposed of.

We have not been favored with a brief by appellant, but we assume he relies upon the recent case of Tumey v. Ohio, 273 U. S. 533-535, 47 S. Ct. 437, 71 L. Ed. 759, 50 A. L. R. 1243. Reference is made in this opinion to the Texas statute and to the Texas case of Bennett v. State, 4 Tex. App. 72, which pointedly holds a county judge in Texas is not disqualified as against the objection urged on this appeal. It is fairly inferable from the Tumey opinion, supra, that the United States Supreme Court regards the holding in the Bennett Case as erroneous. It is to be noted, however, in this connection that the Bennett opinion construed an entirely different statute from that under attack in this case. By the statute then in force the county judge received a fee of $5 for every case of misdemeanor or habeas corpus finally disposed of by him, to be paid by the defendant if convicted. Acts 15th Leg. 1876, c. 164. The law has been materially altered since the above decision in such way as to completely meet every constitutional objection relating to personal or pecuniary interest of the county judge as will appear from the terms of article 1052, C. C. P., quoted above, unless it can be said that there still exists a contingent interest attaching by reason of the alleged rule prohibiting the payment of a fee where the case is dismissed upon motion to quash, but which is due if same is overruled and the case tried and finally disposed of. This last-mentioned question we shall now attempt to analyze and examine especially in the light of the Tumey opinion.

That no man ought to be judge in any case where he has a personal or pecuniary interest is an ancient rule, the strictest observance of which is demanded by public policy and natural justice. However, it has been said:

"The rule as to the disqualification of judges must yield to the demands of necessity, where disqualification, if permitted to prevail, destroys the only tribunal in which relief may be sought, and thus effectually bars the door of justice." State of South Dakota ex rel. T. H. Null v. Samuel C. Polley, 34 S. D. 565, 138 N. W. 300, 42 L. R. A. (N. S.) 788.

See 23 Cyc. 581. See, also, 15 R. C. L. § 29, p. 541.

In the Tumey Case occurs the following language:

"Then the circumstance that there is no judge not equally disqualified to act in such a case has been held to affect the question. Wheeling v. Black, 25 W. Va. 266, 280; Peck v. Essex County, 20 N. J. Law, 457; Dimes v. Grand Junction Canal, 3 H. L. Cas. 759, 10 Eng. Reprint, 301; Y. B. 8 Hen. VI. 19, s. c. 2 Rolle, Abr. 33; Evans v. Gore, 253 U. S. 245, 247, 40 S. Ct. 550, 64 L. Ed. 887, 889, 11 A. L. R. 519; Stuart v. Mechanics' & Farmers' Bank, 19 Johns. (N. Y.) 496; Ranger v. Great Western R. Co., 5 H. L. Cas. 72, 10 Eng. Reprint, 824."

It has been further said:

"That a system by which an inferior judge is paid for his service only when he convicts the defendant has not become so imbedded by custom in the general practice whether in common law or in this country that it can be regarded as due process of law unless the costs usually imposed are so small that they may be properly ignored as within the maxim de minimis non curat lex." Tumey v. Ohio, supra.

"Excepting cases where the interest is so remote, trifling or insignificant that it may fairly be supposed to be incapable of affecting the judgment or influence the conduct of an individual the legislature could have no power to abolish this maxim...