Wilks v. State

Citations

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

Syllabus

<p>1, Practice—Disqualification of a District Judge.—A judge is disqualified to preside at the trial of a criminal ease wherein he has been of counsel either for the State or the accused.</p> <p>3. Same—District and County Attorney.—The county attorney of each county in a judicial district, except the county in which the district attorney resides, is expressly required by law to attend the terms of the county and other inferior courts of his county, and therein to represent the State in all criminal cases under prosecution or examination. The district attorney is not required to aid or assist the county attorney in such prosecutions, and the mere fact that a prosecution carried on by the county attorney may eventuate in the return of an indictment to the district court which may ultimately be prosecuted by the district attorney, will not make such district attorney counsel in the ease before the return of the indictment. In this case the examining trial of the accused was prosecuted by a county attorney prior to the election of the Hon. Rufus Hardy to the district judgeship, and while he occupied the office of district attorney. The indictment was found subsequent to his election to the district judgeship, and was presented at a term of court over which he presided. The record further shows that the district judge, while district attorney, had no connection whatever with the prosecution of the examining trial. Held that the objection to the qualification of the judge was properly overruled.</p> <p>8. Indictment—Variance—Idem Sonans.—In the indictment, in one place, the name of the injured party is spelled “Fauntleroy,” and in another “Fontleroy,” and the validity of the indictment is attacked upon the ground of variance in stating the name of the injured party. But held that the names as set out are idem sonans.</p> <p>A Practice—Continuance—Diligence.—The application for continuance failing to show the exercise of legal diligence to secure the absent testimony, and