Porter v. State
86 S.W. 767
Tex. Crim. App.
1905
Check Treatment
HENDERSON, Judge.

Appellant was convicted of a misdemeanor, and prosecutes this appeal.

Appellant contends that this conviction cannot be maintained, because under the Constitution it was not competent for the Legislature to have authorized the election of a special judge to hold said county court. Article 1132b, Bevised Civil Statutes provides, if at the time appointed to hold a county court the judge should not appear, members of the bar can elect a special judge to hold the term of court. The contention is that there is nothing in the Constitution which authorized this procedure; and that the only authority in the Constitution authorizing any one other than the regular county judge to sit, is to be found in section 16 of article 5 of the Constitution, the latter portion of which provides: "When the judge of the county court is disqualified in any case pending in the county court, the parties interested may by consent appoint a proper person to try said case, or upon their failing to do so, a competent person may be appointed to try the same in the county where it is pending, in such manner as may be prescribed by law.” It is further insisted that this being the sole provision authorizing some one else to sit as a judge and try the cases in the county court, and that with reference to district courts it being expressly provided, where a judge fails from any cause to attend at the term, the bar can select a special judge; that this constitutional provision, reinforces the idea that it was not intended to confer authority on the bar, where the judge failed to attend a meeting of the county court, to elect a special judge. We do not believe this contention is sound. The fact that the Constitution provides for the selection of a special judge in the district court, in the absence of some prohibitive provision with reference to county courts, would be no negation of authority. That is, before it could be held that the Legislature did not have the power to provide for the election of a special judge there must be found something in the Constitution with reference to county courts expressly, or by strong implication denying such authority. Ex parte Wilbarger, 41 Texas Crim. Rep., 514; Lytle v. Halff, 75 Texas, 128. As stated, the only clause of our Constitution authorizing the selection of a county judge is where the county judge is disqualified; it has no reference whatever to holding a term of the court where the *129 county judge, from any cause, shall fail to attend. This contingency not being provided for by the Constitution, we hold it was competent for the Legislature to authorize the selection of a special judge by the members of the bar. It is contended in this connection that the county judge is required to give bond, and no provision is found in the act with reference to a special judge requiring him to give bond. We hold that as to his qualifications reference might be had to the general act on the subject; at any rate, the failure to prescribe a bond would not invalidate his election.

It is further insisted that the election here of a special county judge was on the first day of the term, and that the act in question provides that, “if at the time appointed to hold court, the judge shall not appear,” etc.; that “the time” is tantamount to the day, and the county judge would have all of the first day to put in an appearance, and consequently the election of the county judge on the first day wa~, without authority of law. To support this instance we are referred to Scott v. State, 68 S. W. Rep., 177. In that case we held that the district judge had the entire first day to appear, and that the election on the second day would be authorized; but we pretermitted the question as to whether an election on the first day would be void. We do not believe that such election would be without authority of law. Of course, after the election, either on the first or second day, if the regular judge puts in an appearance, he would assume control of the court and oust the special judge of any further jurisdiction.

Appellant contends that the conviction here being under an alleged second count, the same cannot be maintained, because there is really no division of the information into counts. In order to present this matter we copy the charging portion of the information; after alleging time and venue as follows: “That one Porter, late of said county and State, was then and there the owner of cleared and cultivated land surrounded with an insufficient fence, and the said Ben Porter, did then and there unlawfully and wilfully, with a piece of iron, maim and wound, one head of cattle of Hockless Lester within such inclosure, and the said Ben Porter did unlawfully and wilfully and wantonly maim, wound and cruelly and unmercifully beat and abuse one head of cattle; and the said Ben Porter did unlawfully and wilfully and maliciously maim and wound one head of cattle, the same being then and there the property of Hockless Lester, with the intent then and there on the part of him, the said Ben Porter, to injure the said Hockless Lester, the owner thereof, contrary to the form of the statute,” etc. The charge of the court submits only what is termed the second count of said information, to wit: “and the said Ben Porter did unlawfully and wilfully and wantonly maim, wound and cruelly and unmercifully beat and abuse one head of cattle.” The doctrine of using separate counts to charge distinct phases of the same transaction, constituting separate offenses of the same character, is recognized by our statutes, and is commended in our decisions; but in alleging separate counts, some *130 degree of formality must be preserved. That is, the pleader, if he proposes to rely upon separate 'counts, must set them out'in such distinct measure as that they appear to be separate and distinct counts. In Dancy” v. State, 35 Texas Crim. Rep., 615, after citing authorities, we held to a degree of liberality, in referring from one count to another, or from one count back to the original beginning of the information or indictment, beyond the rule recognized at common law. But the rule adopted only extends to looking to other counts as to formal parts of the information, and not to those allegations which charge the offense itself. For instance, it has been held that the commencement and caption in an information or indictment, contained as a part of the first count, may be referred to and considered in aid of any count, as the same constitutes a part of the entire indictment. However, in all pleadings in which separate counts are used, with which we are familiar, these counts must appear separate and distinct. That is, there must be some formal commencement of each count. For instance, where the accusation is by indictment, it must be stated, “and the grand jurors aforesaid, upon their oaths aforesaid, do further present,” etc.; and where it is by information, “and the county attorney further presents,” etc. 1 Bishop Hew Criminal Procedure, section 429. It was never intended, even under our liberal system, that the counts should be conglomerated or run together in such manner as that they cannot be reasonably distinguished one from the other. Here we have what purports to be a count charging defendant under article 799, Penal Code, with the offense of wounding a head of cattle of another within his enclosure, and then we have a comma followed with the allegation, “and the said Ben Porter did unlawfully and wilfully and wantonly maim, wound and cruelly and unmercifully beat and abuse one head of cattle”; which seems to be a charge under article 787, Penal Code. But there is nothing to show it is a separate and distinct count, charging the same transaction in the form of another offense. On the contrary, the two statutes are brought together in the same count, and in our opinion, render the pleading duplicitous. While we commend the method of using different counts, in order to meet thé varying phases of the proof, still, there must be conserved a due and orderly method of pleading. The counts must be set out with some degree of formality; certainly in such manner as to be distinguished the one from the other. We cannot hold to this loose method of pleading, but agree with appellant’s contention that the information should be quashed.

Appellant further insists that the proof is insufficient to sustain the verdict. We have carefully examined the same; the case is one of circumstantial evidence, and we are inclined to believe appellant’s contention in this respect is correct.

The judgment is reversed and the prosecution ordered dismissed.

Reversed and dismissed.