Smith v. State

• Decision Date: 12 November 1887
• Citation: 6 S.W. 40
• Parties: SMITH v. STATE.
• Court: Texas Court of Appeals

6 S.W. 40

SMITH v. STATE.

Court of Appeals of Texas.

November 12, 1887.

Appeal from county court, Walker county; J. M. MAXEY, Judge.

This conviction was for the larceny of a beef, and the penalty assessed was a term of two years in the penitentiary.

None of the rulings in this case, except the last one, involves any of the evidence. With respect to that, it is sufficient to say that, in the face of a strong prima facie case against him, the accused produced several witnesses who testified that he purchased the animal from one Bowen.

Abercrombie & Randolph, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

This case appears to have been tried below by a special judge. It is well settled that in such cases the record upon appeal must show the reasons for the selection of, and the manner in which he became, special judge. Brinkley v. Harkins, 48 Tex. 225; McMurry v. State, 9 Tex. App. 207; Snow v. State, 11 Tex. App. 99; Perry v. State, 14 Tex. App. 166; Wilson v. State, Id. 205; Harris v. State, Id. 676. Three modes are provided by statute for the selection and appointment of special judges: (1) When the regular judge fails to appear at the appointed time, etc., for holding his court, in which event an election of special judge for the term shall be held, in accordance with the provisions of articles 1094-1100 of the Revised Statutes; (2) when the regular judge is, from any cause, disqualified to try a case, the parties thereto may select a special judge to try the case, by agreement, (Code Crim. Proc. art. 570;) (3) when the parties fail to agree, the district judge certifies the fact to the governor, who appoints a special judge to try the case. Code Crim. Proc. art. 571. If selected in either of these three modes, he must, before entering upon his duties as special judge, take the oath of office required by the constitution of the state, "and his selection by the parties, or appointment by the governor, as the case may be, and the fact that the oath of office was administered to him shall be entered upon the minutes of the court as part of the record in the cause," etc. Code Crim. Proc. art. 572. In the case before us, the only entry with regard to the special judge, is as follows: "Tuesday, September 20, 1887, Hon. J. M. Maxey was selected by the state and the defendant, and was sworn to try the case of The State of Texas v. Jordan Smith, No. 2,668." This entry the clerk certifies is to be found in his minutes, but is entirely detached from and disconnected with any of the other proceedings in the case. Whether it is a sufficient compliance with the statute, is the question presented. No reason for the appointment, that is, that the district judge was disqualified, is stated; no agreement in writing to the selection of the special judge is set forth; no statement that he took the oath of office required by the constitution is made, except inferentially. In Thompson's Case, 9 Tex. App. 649, it was held that an agreement of counsel to appoint a special judge to try a cause should be perpetuated in writing, and such writing filed among the papers, and made a part of the record. In Early's Case, 9 Tex. App. 484, it was said: "In the absence of anything appearing to the contrary, we will presume that the regular judge was disqualified from some one of the causes of disqualification enumerated, and that, on that account, the special judge was selected for the trial, and that the proper oath was administered to him as such judge;"...