Murray v. State

34 Tex. 331

• Court: Texas Supreme Court
• Decided: July 1, 1871
• Status: Published

Opinion

Walker, J:

In this case both the Attorney General and the 'counsel lor defendant agree that the judgment of the district court ■should be reversed.

It was an indictment for murder, and the district judge being disqualified from trying the case, the record says, “the parties” agreed upon a special judge. We hold that the State is not a “ party ” within the meaning of the Constitution, who can consent to the trial by a special judge, and the district attorney had no power to consent to such a trial. In certain cases, provided for, the Governor may appoint a special judge to sit.

We need not decide whether it was necessary, in this cáse, for the person agreed upon to take an official oath.

But it is our opinion that, in all cases where a special judge is appointed, it is- imperatively necessary that he should take an official oath, although his duties extend to but one case.

We think there is no doubt that the twelfth section, article one, of the Constitution contemplates this necessity, and if there should be any doubt on this subject, article six, third clause of the Constitution of the United States settles the question. One who acts as a special judge is for that particular case a judicial officer, and the clause referred to requires “that all judicial officers -shall b.e bound by oath or affirmation.”.

It is said that John G. Atkinson, the gentleman “ agreed upon by the parties” to try this case, was not a lawyer, and therefore not a “ proper person,” in the language of the Constitution, to try the case. The record does not show that he was a person learned in the law, or that he was indeed a proper person. This matter, perhaps, might not necessarily be noticed in this case, but its importance, we think, renders it ■ proper that it should be. The judgment <of the 'district court is reversed and the cause remanded.

Reversed and 'remanded.