Adam Thompson v. The State, 9 Tex. Ct. App. 649

Winkler, J. This appeal is from a verdict and judgment of conviction of murder in the first degree, with the death-penalty. The indictment charges the appellant and one Pollard with the murder of one Joseph Shoemaker, alleged to have been committed in Dallas County, on July 1, 1876. A severance having been granted, the appellant .was tried before the Hon. Sawnie Robertson, special judge appointed by the governor to preside at the trial, the regular judge of the district being disqualified to try the case by reason of his having been of counsel therein prior to the time of his election as judge.

Two supposed errors in the jiroceedings below were urged on the trial, and the rulings of the court were perpetuated by bills of exception, and are presented and insisted upon in this court as grounds for reversing the judgment: 1. The defendant objected to being placed on trial before the special judge appointed, his objection being based mainly on the ground that counsel for the State and the defendant had agreed to select as judge for the trial another member of the Dallas bar. The objection" was overruled, and the defendant excepted to the ruling of the court. 2.

The defendant pleaded that he had, at a former term of the court, been placed on trial on the same indictment for the same offence; that he had once been placed in jeopardy, and could not be again tried for the same offence. On demurrer by the county attorney, the plea of former jeopardy was stricken out, and the defendant excepted to this action of the court.

With reference to the first question, it seems that, prior to making application to the executive for the appointment of a special judge, a severance had been granted, and an agreement had been made to try the case before Judge Barksdale, or other special judge, as was conceded by the county attorney. The bill of exceptions, however, recites that he was unwilling to risk the agreement to select a special judge, and had this defendant’s case, as well as that of Pollard, his co-defendant, certified up to the governor.

The argument of the appellant is, that the agreement of counsel to select a special judge, and they having made a selection of a special judge, was binding upon the State, and that the defendant had a right to demand to be tried before the special judge chosen by the parties to try the case, and ought not to be compelled to try before a special judge appointed by the governor.

It does not appear from the bill of exceptions, or elsewhere in the record, that the agreement of counsel to select a special judge for the trial was made a matter of record, or reduced to writing, and the writing placed among the papers of the case.

On the contrary, we are of opinion the inference is plain that whatever of agreement there was, was merely verbal; and, for aught that appears to the contrary, this may have been the very reason why the county attorney, in the proper discharge of duty, was unwilling to risk the agreement of counsel, and caused the fact of the disqualification of the regular judge to be certified to the governor for his action in the premises.

The Constitution specially prohibits any judge from sitting in any case wherein he shall have been of counsel, and provides, further, that when a district judge is disqualified by reason of any of the disqualifying causes enumerated, “ the parties may, by consent, appoint»a proper person to try said cause.” Art. V., sect. 1. The right of counsel to select a special judge is not confined, as was at one time supposed, to civil cases, but extends to criminal actions as well. Early v. The State, ante p.476; Davis v. The State, 44 Texas, 523. It is also provided by the same

article of the Constitution that, on a failure of counsel to select, “ 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.” The law has prescribed that, 61 should the parties not agree upon an attorney to try the case, on or before the day set for trial of the criminal docket, the district judge shall forthwith certify the facts to the governor, who shall at once appoint some practising attorney, learned in the law, to try such case.” Code Cr.

Proc., arts. 571, 572. “ The attorney agreed upon or appointed, as provided in the two preceding articles, shall, before he enters upon his duties as special judge, take the oath of office 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 a part of the record of the cause, and he shall have all the power and authority of the district judge that may be necessary to enable him to conduct, try, determine, and finally dispose of the case.” These articles are preceded by art. 570, which gives authority to the parties or their counsel to select and agree upon an attorney of the court to preside as special judge in the trial, and thus avoid the necessity of a change of venue.

To our minds, the court did not err in holding that the State was not bound by what appears in the record on the subject of an agreement of counsel to select a special judge. That so important a step in the trial of a man on an issue involving his life, as the selection of a judge to preside at the trial, should be left to be settled by the vague and uncertain recollections of counsel, seems to us incredible. If such a thing had really been determined upon, the agreement should have been perpetuated in some more definite and durable form.

There is no controversy as to the fact that the district judge was disqualified on account of having been of counsel in the case.

There is no sufficient evidence in the record as to what the counsel had agreed upon, or that they had definitely agreed upon anything, as to the selection of a special judge, within the time and in the manner prescribed by law; and hence we conclude, that the emergency which warranted the invocation of the governor had arisen, and from the record it is shown that the governor, acting under lawful authority, had appointed the judge who presided at the trial, and that he was sworn as required by law. The special judge was duly and legally appointed to sit as judge and preside at the trial.

The position of counsel, that the defendant had once before been placed in jeopardy and could not be again tried, though supported by an able and ingenious argument, in which numerous authorities are cited, is wholly untenable. The circumstances are briefly these : The defendant had previously been tried and convicted. On his own appeal the conviction was set aside, the judgment reversed, and the case remanded for a new trial. 4 Texas Ct. App. 44.

The effect of this action of the Court of Appeals upon the defendant’s case was to place his case in precisely the same condition as if the District Court had granted a new trial and there had been no appeal. Code Cr. Proc., art. 876. In such a case the doctrine of former jeopardy has no application whatever, for the simple reason that there had been no final adjudication of the case. Vestal v. The State, 3 Texas Ct. App. 648, and authorities there cited; Simco v. The State, ante, p. 338.

The action of this court on the former appeal is known to us, and it is shown by the record that it was known to the court below on the present trial. The plea of former jeopardy was properly stricken out on the motion and demurrer of the county attorney. The record shows that time was allowed counsel for the preparation of a statement of facts. Still, no statement of facts appears in the record. In the absence of this, our investigations are quite limited.

Bills of exception taken to the rulings of the court below, which do not state the whole of the evidence on the question involved, cannot be revised in the absence of a statement of facts ; and so, too, of charges of the court, whether given or refused. The practice has been so long settled on these subjects as not to require a reference to authorities in its support. From all we can gather from the record before us, aided by an elaborate brief by the appellant’s counsel, we fail, from a patient and careful investigation, to discover any error which would warrant a reversal of the judgment.

The appellant was tried in the court below upon a valid indictment for murder in the first degree, before a legal court. The charge of the judge sufficiently instructed the jury as to murder of the first as well as of the second degree, express malice and implied malice, and murder committed in the perpetration, or in the attempt at the perpetration, of robbery, with a very fair instruction as to the presumption of innocence and the reasonable doubt. It therefore becomes the duty of this court to affirm the judgment of the court below, and it is accordingly so ordered. Affirmed.