24 Tex. Ct. App. 290 | Tex. App. | 1887
This case appears to have been tried below by a special judge. It is well settled that in such cases the record upon appeal must show the reasons for the selection of, and the manner in which he became special judge. (Brinkley v. Hawkins, 48 Texas, 225; McMurray v. The State, 9 Texas Ct. App., 207; Snow v. The State, 11 Texas Ct. App., 99; Perry v. The State, 14 Texas Ct. App., 166; Wilson v. The State, Id., 205, and Harris v. The State, Id., 676.) Three modes are provided by statute for the selection and appointment of special judges: First. When the regular judge fails to appear at the appointed time, etc., for holding his court, in which event an election of a special judge for the term shall be held in accordance with the provisions of articles 1094 to 1100 of the Revised Statutes, inclusive. Second. When the regular judge is from any cause disqualified to try a case, the parties thereto may select a special judge to try the same by agreement. (Code Crim. Proc., art. 570.) And third, where the parties fail to agree, the district judge certifies the facts to, and the Governor appoints a special judge to try the case. (Code Crim. Proc., art. 571.) If selected in either of these three modes he must, before entering upon his duties as special judge, take the oath of office as required by the Constitution of the State; “ and his selection by the parties, or appointment by the Governor, as the case may be, and the fact that the oath of office was administered to him, shall be entered upon the minutes of the court as part of the record of the cause,” etc. (Code Crim. Proc., art. 572.)
In the case before us the only entry with regard to the special judge is the following: “Tuesday, September 20, 1887, Hon. J. M. Maxey was selected by the State and defendant, and was
In Thompson’s case, 9 Texas Court of Appeals, 649, it was held that an agreement of counsel to appoint a special judge to try a cause should be perpetuated in writing, and such writing filed among the papers and made a part of the record.
In Early’s case, 9 Texas Court of Appeals, 484, it was said: “In the absence of anything appearing to the contrary, we will presume that the regular judge was disqualified from some one of the causes of disqualification enumerated, and that on that account the special judge was selected for the trial, and that the proper oath was administered to him as such judge.” But in that case the record affirmatively stated that the parties in open court agreed upon the special judge, and, further, that “he was duly sworn according to law.” In the case we are considering, the statement is that “he was sworn as a special judge.” This is certainly most indefinite. It does not inform us what oath was taken. If he did not take the Constitutional oath of office, he was not “ sworn according to law.” We are of opinion that the entry of the selection of the special judge is too uncertain in terms to show even a substantial compliance with the law. (See Willson’s Crim. Forms, Nos. 644, 645, p. 299.)
In disposing of this case upon appeal, we are requested by the Assistant Attorney General, in view of another trial, to pass upon two other questions plainly arising upon the record. The first is as to whether there is a variance between the allegations in the indictment and the proofs with regard to the description of the animal charged to have been stolen. In the indictment the animal is described as “one beef, an animal of the cattle kind.” In the evidence the animal is proved to have been a cow. The question is whether the word “beef” embraces “a cow.” We are of opinion that it does, and that there is no variance.1 In Duval v. The State, 8 Texas Court of Appeals, 370, it was held that “ one beef cattle” is a sufficient description of a
Upon the other matter, the charge of the court is radically deficient. The only defense relied upon was a purchase of the alleged stolen animal. This may, in the estimation of the learned trial judge, have been a pure and manifest fabrication; nevertheless, as it was the issue made by evidence and a question the truth of which it was the province of the jury alone to pass upon, it was his duty to submit it to them under appropriate instructions in the charge. (White v. The State, 18 Texas Ct. App., 57; Irvine v. The State, 20 Texas Ct. App., 13; Wimberly v. The State, 22 Texas Ct. App., 506; Bond v. The State, 23 Texas Ct. App., 180; Shuler v. The State, Id., 182.)
The judgment is reversed and the cause remanded.
Reversed and remanded.
