184 S.W.2d 623 | Tex. Crim. App. | 1945
Appellant was charged with a violation of the liquor laws and assessed a fine of One Thousand Dollars with six months imprisonment in the county jail.
The record reflects that this cause was tried before the Honorable Ed Yarbrough, as special judge. We do not find, from the minutes, any record showing the disqualification of the County Judge, the appointment, or selection, of Ed Yarbrough as special judge, nor do we find a statement that he took the constitutional oath. The selection of a special judge is controlled by statute, the terms of which should be complied with. See Articles 554, 555 and 556 of Vernon's Ann. C. C. P. and the annotations thereunder.
By Article 556 Cow. C. P. it is provided that where a special judge is agreed upon by the parties, or appointed by the Governor, the clerk shall enter in the minutes as a part of the proceedings in such cause, a record showing three things: First, that the judge was disqualified, second, the manner of selection of the special judge, and third, that he took the oath of office. The question has been frequently before this court and without exception the holding has been that the articles of the statute above referred to must be complied with.
In Smith v. State,
In Weatherford v. State,
In Reed v. State,
In Salazar v. State,
Dawes v. State,
In Norman v. State,
Harris v. State,
In McLemore v. State,
In Sewell v. State,
Petitte v. State,
The State has filed a supplemental transcript in which we find a copy of the oath of office administered to Ed Yarbrough, as special judge, on the eighteenth day of April, 1944, but it is not shown that the fact of this oath was entered on the minutes, nor is there any effort to comply with the other requirements of Article 556 of the C. C. P. The filing of the oath among the papers is not a substantial compliance with the statute, especially in the absence of a showing that the regular judge was disqualified and the manner of selection of the special judge. All of these facts should appear on the minutes and come forward in the transcript with the appeal.
The judgment of the trial court is reversed and the cause remanded.