Johnson v. State

70 S.W.2d 173, 126 Tex. Crim. 121, 1934 Tex. Crim. App. LEXIS 551

Opinions

LATTIMORE, Judge. —

Conviction for assault; punishment, a fine of $5.

An inspection of the record shows that this case was tried before a special judge. The record is entirely devoid of any reason why or cause for the failure of the regular judge to sit; and likewise fails to show that the special judge was selected in any legal manner or form; and also fails to show that the special judge qualified or took the oath required. In Smith v. State, 24 Texas Crim. App., 290, reference was made to the modes prescribed by statute for the selection or appointment of a special judge, and to the further fact that it is required that the person so selected or appointed shall, before entering upon his duties, take the oath of office required by the Constitution, and reference is also made to the fact that the manner of the selection or appointment of such special judge, together with the reason therefor, 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 in the cause, and the same must appear in the transcript on appeal. The same has been substantially held many times since. See Norman v. State, 102 Texas Crim. Rep., 5; McLemore v. State, 107 Texas Crim. Rep., 408; Mims v. State, 112 Texas Crim. Rep., 176; Khan v. State, 115 Texas Crim. Rep., 92. In the latter case this court said: "The record is silent touching the election, appointment and qualification of the special judge. When the trial is had before a special judge, it is imperative that the record show his election and qualification.” Reference is made in the opinion to Petitte v. State, 21 S. W. (2d) 522, for collation of authorities.

For the reasons just mentioned the judgment will be reversed and the cause remanded.

Reversed and remanded.