Utzman v. State
| Decision Date | 18 November 1893 |
| Citation | 24 S.W. 412 |
| Parties | UTZMAN v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Brown county; J. O. Woodward, Judge.
Frank Utzman was convicted of murder in the first degree, and appeals. Reversed.
Jenkins & McCartney and A. S. Fisher, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.
Appellant was convicted of murder in the first degree, and his punishment assessed at imprisonment for life. We do not think that the district judge was disqualified from sitting in the case. It is true he was district attorney at the time the homicide was committed, but being elected district judge at the November election, and to avoid disqualifying himself, he declined to attend the sittings of the grand jury, and had the district attorney elect appointed by the court, who entered on the discharge of such duties on the opening of the court on the 5th of December, and prepared the indictment in this case, which was presented on the 9th of December. Two days after the opening of the court, the district attorney forwarded his resignation to Austin. It thus appears that, in the case at bar, the Honorable J. O. Woodward, though in office as district attorney when the offense was committed, had nothing to do with the prosecution of said case, either in examining the witnesses, or preparing complaint or indictment, and resigned his position before an indictment was presented. Article 31, Code Crim. Proc., declares that a district attorney, after his term of office expires, shall not be counsel against the state in a case in which he appeared for the state, and to the same effect is article 41, Id. This may be taken as a legislative construction of the constitutional clause disqualifying a judge "when he shall have been of counsel in the case." Const. art. 5, § 11.
2. We think the court erred in refusing to permit Mrs. Utzman to testify as to the improper advances made by Thurmond two years previous to the homicide, and William Hester's statement of appellant's declarations to him. The state was permitted to introduce proof of threats by appellant extending back for two years prior to the homicide, and to show that the reason given was a business disagreement. To meet this strongly inculpatory evidence, appellant sought to prove the true cause was the insult offered to his wife, and not a business misunderstanding, and that he had yielded to the tears and entreaties of his wife in not attacking deceased at once;...
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Hathorne v. State
...not live in such county, and the district attorney did not appear at such hearing and did not even hear of such case.In Utzman v. State, 32 Tex.Cr.R. 426, 24 S.W. 412, the trial judge was held qualified although district attorney at the time of offense for he disqualified himself, had the c......
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Gamez v. State
...that he 'acted as counsel in the case' as contemplated by the constitutional and statutory provision relied upon. See Utzman v. State, 32 Tex.Cr.R. 426, 24 S.W. 412 (1893); Muro v. State, 387 S.W.2d 674 (Tex.Cr.App.1965) and cf. Ex parte McDonald, 469 S.W.2d 173 (Tex.Cr.App.1971), and Hatho......
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Cruz v. State, No. 07-09-0076-CR (Tex. App. 6/10/2010)
...State, 538 S.W.2d 123, 125 (Tex.Crim.App. 1976); Carter v. State, 496 S.W.2d 603, 604 (Tex.Crim.App. 1973); Utzman v. State, 32 Tex. Crim. 426, 24 S.W. 412, 412 (Tex.Crim.App. 1893). Without more, the mere fact that a judge served as a district attorney while an appellant's case was pending......
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Lee v. State
...he 'acted as counsel in the case' as contemplated by the constitutional and statutory provisions relied upon. See Utzman v. State, 32 Tex.Cr.R. 426, 24 S.W. 412 (1893); Muro v. State, 387 S.W.2d 674 (Tex.Cr.App.1965) and cf. Ex parte McDonald, 469 S.W.2d 173 (Tex.Cr.App.1971) and Hathorne v......