Brown v. State

238 S.W.2d 787

Opinions

BEAUCHAMP, Judge.

The appeal is from a conviction for violation of the local option with a fine of $100.

Appellant was convicted by a jury, which fixed the penalty. The only question raised on this appeal complains that the special judge trying the case was not selected and qualified according to. law and that he, therefore, had no jurisdiction to try the case.

The regular county judge was ill and in the hospital the day the court convened and the lawyers present proceeded to elect Walter K. Boyd, Jr. for the term of court in his place. An examination of the transcript reveals the procedure to be in strict compliance with Article 1934, Vernon’s Ann.Civil Statutes. It is appellant’s contention, however, that a special judge for the term could not be elected for the purpose of trying criminal cases. To this we cannot agree. When he has taken the oath as special judge he has all the authority to try a case which the regular judge would have if present.

From appellant’s brief it appears there is some confusion in understanding the authorities because of a line of cases holding that where a special judge is agreed upon each defendant must agree upon such special judge, and he is required to take a separate oath in each case tried. This is in accordance with Mims v. State, 112 Tex.Cr.R. 313, 15 S.W.2d 628, but has no application to a case in which the bar, in compliance with the statute, elected a special judge for the term in the absence of and because of the illness of the regular county judge.

The procedure before us is regular and the judgment of the trial court is accordingly affirmed.