REED V. THE STATE
No. 4000
Texas Court of Criminal Appeals
December 10, 1908
55 Tex. Crim. 137 | 55 Tex. Crim. 138
No brief on file for appellant.
F. J. McCord, Assistant Attorney-General, for the State.
BROOKS, JUDGE.-Aрpellant was convicted of bigamy, and his punishment assessed at five years confinеment in the penitentiary.
Upon the trial of the case the court permitted the wifе of the first marriage to testify for the State. This has been held error by an unbroken line of authorities of this court. Evidently the learned trial judge knowing the outrage that often goes unрunished by reason of this fact, permitted this testimony introduced in order that this court might have an opportunity of again reviewing the authorities on this question. This we have done, and аlthough, as the court evidently did, we recognize the fact that often an appellant goes unwhipped of justice by reason of the inability of the former wife to testify, yet we are constrained to hold and adhere to the former adjudications of this court, believing that they are in consonance with the statute which inhibits the wife testifying against thе husband. But we most respectfully call the Legislature‘s attention to the fact that the stаtute itself should be amended, and especially in bigamy cases the wife should be permitted to testify.
Because the court permitted the wife to testify, as suggested, the judgment is reversed and the cause is remanded.
Reversed and remanded.
DAVIDSON, PRESIDING JUDGE.-I agree to the disposition of the case and think it is correct that the wife can not testify against the husband; and think the law should remain as it is and has aforetime been.
RAMSEY, JUDGE.-I think the rule a harsh and unjust one, though it seems to have been thoroughly established and is probably correct under our statutes. It ought, I think, to be changed.
DOCK REED V. THE STATE.
No. 4000. Decided December 10, 1908.
Theft-Special Judge-Practice on Appeal.
Where upon appeal from a conviction of theft the record failеd to disclose the disqualification of the regular judge, and by what authority the speciаl judge was selected or designated, or that he had taken the oath of officе, etc., the judgment must be reversed and the cause remanded. Ramsey, Judge, dissenting.
Appeal from the District Court of Rusk. Tried before the Hon. R. T. Brown, special judge.
The opinion states the case.
No brief on file for appellant.
F. J. McCord, Assistant Attorney-General, for the State.
DAVIDSON, PRESIDING JUDGE.-This is a сase of theft. The caption recites that Hon. R. T. Brown, special judge, presided at this trial. The record fails to disclose the disqualification of Hon. W. C. Buford, the regular judge, nor is it anywhere in the transcript shown by what authority a special judge was electеd or agreed upon, or in any manner legally designated to try this case. Under article 609 Code Criminal Procedure and those preceding it, it is necessary that the record show, if a special judge sits, the authority for such selection and how selected аnd the fact that the proper oath was administered to him as such special judge. Article 609 Code Criminal Procedure requires that the record shall show these matters. If Honorable R. T. Brown was agreed upon or legally designated to sit as special judge, the record fails to show it or that he took the oath of office, or that any of these matters appear of record in the trial court. Under the authorities in thе State, this judgment for this reason must be reversed. See White‘s Annotated Code of Criminal Proсedure, section 657, for collation of authorities. As the record is presented оn this question, we deem it unnecessary to investigate or revise the questions presented for adjudication.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
RAMSEY, JUDGE.-The decision is in line with the former holding of this court, but is, in my judgment, so unsound that I cаn not consent to it. I think the decisions of our Supreme Court to the effect, in substancе, that where no question was made in the court below concerning the due appointment and qualification of the special judge, that it would be presumed on appeal that these matters were legal or correct. I think the statutes abovе quoted are merely directory. The Constitution in terms authorizes parties litigant to agrеe on a special judge. Wherever in any case on trial before a spеcial judge the parties proceed without protest or objection and fоr the first time challenge the regularity of the appointment on appeal, it оught to be presumed, in aid of the jurisdiction of the court, that the appointment or selection was regular and that such judge had regularly taken the precedent steps necessary and provided by law for his proper qualification.