BAKER v. STATE
No. 26465
Court of Criminal Appeals of Texas
May 27, 1953
On Rehearing June 24, 1953. Rehearing Denied Oct. 14, 1953.
593
The manner in which the trial court submitted the case to the jury lends emphasis to thаt conclusion, because nowhere did the trial court elect upon any transaction or state of facts by which the jury might predicate guilt. To the contrary, the jury were authorized to convict upon any state of facts which they concluded showed appellant guilty, for there was no charge defining to the jury the term, “assault,” or in any mаnner advising the jury as to what, in law, would constitute an assault.
The facts showing or tending to show that appellant was guilty of the crime of sodomy were not only covered by the аllegations of the information, but the state was authorized to predicate a conviction thereon.
It must be remembered that it is within the power of the state to carve out of any transaction or state of facts any crime which is revealed thereby, and to prosecute therefor.
So far as this record shows, the assault of which the jury found appellant guilty was and could have been the assault occurring in the commission of the crime of sodomy.
It is apparent that the testimony of the officers was not only a part of the res gestae but also set forth facts upon which the jury might predicate their verdict.
Appellant insists that the testimony of the officers may not be given the construction just noted, because of the certificate of the trial court in the bills of exception to the effect that the charge against apрellant was predicated upon injuries received by the prosecuting witness in a fight.
As above pointed out, it is impossible, in the light of the court‘s charge, for the trial court to have known—or any one else to know—upon what state of facts the jury based its conviction. Of necessity, therefore, the certificate of the trial court could not restrict or limit the application of the jury‘s verdict to any particular state of facts.
The motion for rehearing is overruled.
Opinion approved by the Court.
Wesley Dice, State‘s Atty., of Austin, for the State.
DAVIDSON, Commissioner.
This is а conviction for violating the drunk driving statute.
The record affirmatively reflects that the regular judge of the County Court of Grimes County, in which court this case was filed and pending, recused himself from sitting as judge therein and that the parties agreed that Judge A. S. Ware, County Judge of Brazos County, might sit as special judge in the trial of the case.
Judge Ware did try the case, overruled the motion for new trial, and rendered the judgment herein.
One of the grounds asserted in the motion for new trial was that the special judge had not taken the prescribed oath of office and same was not of record in the court.
This allegation does not appear to be disputed. The record before us contains no such oath of office.
There is no question but that where a case is tried by a special judge the record must affirmatively reflect that such judge took the oath of office, as prescribed by the Constitution. This is true when the parties agree as to who shall act as special judge.
While is it true that under the
Here, Judge Ware did not purport to act or sit as judge of the county court of Brazos County, but, rather, as a special judge. A special judge has no authority to act until he has taken the oath of office. Until he has taken such oath, his acts are a nullity.
Because of the failurе of the special judge to take and to subscribe the oath of office, this judgment must be and is reversed and the cause remanded.
Opinion approved by the Court.
On State‘s Motion For Rehearing
WOODLEY, Judge.
The state has filed motion for reheаring and the record has been corrected by supplemental transcript setting out the minutes of the court showing that the special judge took the oath required by law. The judgment recites that such oath was taken before the case proceeded to trial.
The state‘s motion for rehearing is granted, the order of reversal is set aside, and the judgment is now affirmed.
On Appellant‘s Motion for Rehearing.
DAVIDSON, Commissioner.
Appellant‘s mоtion for rehearing is based upon the contention that the record does not affirmatively reflect that the oath of office of the special judge trying this casе was entered in the minutes of the court during or at the term of court at which this conviction was had and over which the special judge presided.
The supplemental transсript upon which we relied in granting the state‘s motion for rehearing shows that the special judge took the prescribed oath of office, and that the same had been entered in the minutes of the county court. However, there is an entire absence of any certificate or showing of the exact time the oath of office was so entered. There is also an entire absence of any proof, certificate, or suggestion that the oath was entered in the minutes of the court during and at the tеrm at which this case was tried or the special judge acted.
If the photostatic copies of several pages of the county court minutes, which appеllant presents in connection with his motion for rehearing, are to be relied upon as showing the date of the entry of the oath of office in the minutes of the court, thе entry was made subsequent to May 12, 1953, and before May 22, 1953, which was long after the record in this case had been filed in this court on April 27, 1953.
The term of court at which this conviction was had adjourned on March 16, 1953. If the oath of office was, in fact, entered in the minutes of the court during May, 1953, such entry was long after the adjournment of the term of court.
Appellant contends that it is immaterial whether the entry in the minutes was or was not made in May, 1953, but that it was material that the oath be entered in the minutes during and while the term of court was in session аnd before that term of court had ended by adjournment.
In that connection, it is also contended that the burden is upon the state to show not only that the special judge took the oath as prescribed by the Constitution, but also that such oath was duly entered and carried into the minutes of the court over and during which the special judge presidеd.
There is an absence of any affirmative showing, here, that the oath was entered into the minutes of the court before the adjournment of that term.
Hence, the questiоn for our determination is whether the law requires that the oath of office of a special judge be recorded in the minutes of and during the term of court at which the spеcial judge acted and the conviction was had.
The conclusion is reached that the construction to be given said statute is that it requires that the oath of office be recorded in the minutes of the court, in order that there might exist permanent evidence not only that the special judge tоok the oath of office but also permanent evidence of the oath that was actually taken.
In the absence of any suggestion of injury, or of an opportunity on the part of the accused to attack the form of the oath of office if he so desired, we are unable to conclude that the time of entry of the oath of office in the minutes was a requirement of the statute.
The power of the special judge over the case does not necessarily cease with the аdjournment of the term. He may, at a subsequent term, enter nunc pro tunc the judgment in the case. Pennington v. State, 13 Tex.App. 44. Moreover, a special judge has all the power that the regular judge сould have or could exercise.
Here, the special judge was not without authority, therefore, to order the oath of office recorded after the adjournment of the term of court at which the case was tried.
Believing that a correct conclusion was reached in affirming the judgment below, the motion for rehearing by appellant is overruled.
Opinion approved by the Court.