14 Tex. Ct. App. 166 | Tex. App. | 1883
It appears from the record that this case was tried before, and the judgment appealed from was rendered by, the Hon. T. J. White, purporting to be the judge of the District Court of the judicial district including Coleman county. It is judicially known to this court that the Hon. W. A. Blackburn was the judge of said district at the time of said trial, and further that there was no judge of the District Court in this State, at the time of said trial, whose name was T. J. White. We presume the case was tried before a special judge of that name, but the record fails to show that such was the case. There is nothing in the record to show by what authority T. J. White presided as judge in the trial of the cause, or that he was sworn as required by law. In the absence of a showing in the record that the cause was tried before, and the judgment rendered by, a judge having lawful authority and qualified to act in that capacity, we must treat the judgment as a nullity and reverse it. (McMurray v. The State, 9 Texas Ct. App., 207; Brinkley v. Harkins, 48 Texas, 225.)
It appears further from the record that a previous trial of this case had occurred, which resulted in a judgment for the defendants, but, upon motion of the district attorney, this judgment was set aside, and a new trial was granted the State. Article 776 of the Code of Criminal Procedure declares that “A new trial can in no • case be granted where the verdict or judgment has been rendered for the defendant.” It has been settled by the decisions of this court, following decisions previously made by the Supreme Court, that a proceeding upon a forfeited bail
In accordance with these decisions, and the article of the Code above cited, we must hold that the court erred in setting aside the judgment rendered in favor of defendants, and granting the State a new trial. That judgment was final and conclusive against the State, and operated to entirely discharge defendants from all further liability upon the bail bond.
As this view of the case must finally dispose of it, we will not determine other questions presented by the record. The judgment is reversed and the suit dismissed
Reversed and dismissed.
Opinion delivered May 9, 1883
