Early v. State

Citations

• 9 Tex. Ct. App. 476

Syllabus

<p>1. Practice in this Court — Statement oe Pacts. —In the absence of a statement of facts, this court is limited in its investigation to a consideration of the question whether or not the indictment will sustain the charge and the finding of the jury, and to bills of exception which set forth the whole of the evidence involved.</p> <p>2. Practice — Special Jttoqe. — The Constitution of this State, Art. V., sect. 11, provides that when the judge of a District Court is disqualified, the parties to a cause may, by consent, appoint a special judge to preside.</p> <p>3. Same. — Art. 570, Code of Criminal Procedure, provides that when a district judge is disqualified to try a criminal cause, no change of venue for that reason shall become necessary, but the parties, or their attorneys, shall have the right to select an attorney of the court to preside at the trial. This provision does not transcend that of the Constitution above cited.</p> <p>4. Same. —In criminal cases the State is a party litigant, and acts and speaks through her attorneys, and they are authorized to consent on her behalf to the selection of special judges to try criminal cases wherein the regular-judge is disqualified. Davis v. The State, 44 Texas, 523, cited and approved, and Mm-ray v. The State, 34 Texas, 331, overruled on this point.</p> <p>5. Same—Presumption of Law.—The entry in the record sets out that, “ Now on this day came the State and the defendant, by their attorneys, and the parties by attorney agree that W. H. A., an attorney of this court, shall preside as special judge for the trial of this cause; whereupon the said W. H. A. is now duly sworn according to law as special judge to try this cause.” In the absence of anything appearing to the contrary, this court will presume that the regular judge was disqualified by some statutory cause, and that the special judge was selected for that reason, and that the proper oath was administered to him as such judge.</p> <p>6. Murder. — Evidence to