Wilks v. State

11 S.W. 415, 27 Tex. Ct. App. 381, 1889 Tex. Crim. App. LEXIS 47

• Court: Court of Appeals of Texas
• Decided: March 16, 1889
• Docket: No. 2721
• Status: Published

Opinion

White, Presiding Judge.

Appellant insists that the judgment should be reversed because the trial judge was disqualified from trying the case. This point was made in the court below, and the facts pertaining to the question are matters of record. From these it appears that at the time the offense was committed the Honorable Rufus Hardy, who, as judge of the district court (recently elected;, presided at the trial, was the district attorney of his district, one of the counties being Navarro, the county in which the offense here prosecuted was committed. After its commission appellant was arrested and tried before an examining court, at which trial he was prosecuted by the county attorney. This was before Judge Hardy’s election as district judge. After his election this indictment was found and presented in his court. It is shown by the bill of exceptions that he not only did not participate in the prosecution of the case before the examining court, but that in fact he never had heard of the case or had any connection whatever with it until, as district judge, he called the case upon the docket for trial.

A judge is inhibited from sitting in a criminal case when he has been of - counsel for the State or the accused. (Const., art. 5, sec. 11; Code Crim. Proc., art. 569; Thompson v. The State, 9 Texas Ct. App., 649; Cock v. The State, 8 Texas Ct. App., 659; Railroad v. Ryan, 44 Texas, 426.)

It is only in counties where the district attorney resides that the county attorney does not perform the usual functions of his office. (Rev. Stats., art. 247.) In all other counties where there is a county attorney it is made his duty expressly “to attend the terms of county and other inferior courts of their respective counties, and to represent the State in all criminal cases under prosecution or examination in such courts,” etc. (Rev. Stats., arts. 241, 247a, Sayles.) The district attorney is not required to aid or assist in such prosecution; and the fact that the prosecution may eventuate in the finding of an indictment which he may ultimately have to prosecute in the district court can not and will not make him counsel in the case until the indictment has been found. In this case, the judge having had no connection with the case in any manner whatever as counsel, was not disqualified from trying it.

Opinion delivered March 16, 1889.

Defendant’s motion to quash the indictment was based upon a variance in the mode of spelling the name of the assaulted party and the party intended to be killed—the difference being that in one instance it was spelled Fauntlerov and in the other Fontleroy. If there was any such difference, then it amounted to nothing because the two names are idem, sonans.

Ho error is made apparent on account of the overruling of defendant’s application for a continuance. Sufficient diligence is not shown, and if it had been then we think it apparent from the trial evidence that the proposed testimony is not probably true.

Objections to the admission of evidence were not saved by bills of exception, and consequently are not entitled to be considered. The charge of the court was a full and fair presentation of law to all the legitimate phases arising upon the evidence, and there was no error in refusing the special requested instructions.

In our opinion the evidence is amply sufficient to support the verdict and judgment. The judgment is affirmed.

Affirmed.