Reed v. State , 11 Tex. Ct. App. 587 ( 1882 )

Hurt, J.

Reed was convicted of murder of the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years.

One Reuben Stillwell and the appellant were jointly indicted for the murder of Cicero Porter. Stillwell was related to the regular judge (W. E. Collard), being his second cousin. W. E. Collard, being thus related to Stillwell, certified his disqualifications to the governor, who appointed as special judge A. C. Brietz. When the cause was reached and called for trial, the defendant pleaded that the special judge had no proper jurisdiction of defendant or of said cause; that the regular judge of said court, W. E. Collard, was in no manner disqualified to try the case. This plea was overruled by the special judge and defendant excepted.

Article 569, Code of Criminal Procedure, provides that no judge shall sit in any case where the accused may be connected with him by consanguinity or affinity within the third degree. The judge shall not “sit,” which evidently means make any orders in or try any case when the party accused, meaning the party to be tried,- is related within the third degree. If not related within the third degree, it is the duty of the judge to sit and try the cause; and the defendant has the right to demand a trial by a regular judge. Nor can the judge recuse himself, nor the governor appoint a special judge, unless the regular judge is disqualified, or comes within some of the provisions of the statute authorizing the election or appointment of a special judge.

The question, therefore, is, was the regular judge disqualified to sit and try this defendant? It is not pretended that this defendant was related in any degree to the judge. The only ground of disqualification was the relationship between him and Reuben Stillwell. But Still-well had not been arrested; there was no possibility of his being tried. Hence we have this proposition;— when a case is reached and called for trial, is the regular judge disqualified by reason of the fact that some relation within the disqualifying degree is jointly indicted with defendant, though not arrested? We are of the opinion that he is not. There was nothing to prevent his sitting in this cause and trying this defendant. If, then, he was not disqualified to try the defendant, he could not recuse himself, nor could the appointment of the governor invest the special judge with the power legally to try the defendant.

If, however, Stillwell had been arrested, he and defendant being jointly indicted and the regular judge being related to Stillwell, the right of the special judge to try Stillwell would have carried with it the right to try the defendant. This, however, was not the case; Stillwell had not been arrested; the defendant alone could have been tried, and there was no obstruction in the way of the regular judge to try him.

Collateral consequences which may result favorably to Stillwell are not embraced in the statute. Is the regular judge related in the third degree to the person to be tried is the question; if not, though his partiality for his relation jointly indicted may redound to his benefit, still under the statute on this subject the regular judge is not disqualified.

It is insisted that the court should have given the charge asked by the defendant in regard to a conspiracy between certain parties and deceased. There was no evidence to support the charge, in the shape it was worded, and the court had given all that was required under the evidence, under the head of self-defense.

The only serious question presented is whether the facts, or any part of the evidence, justified a charge to the effect “that if Stillwell killed Porter with malice, etc., and the defendant was present, and, knowing the unlawful intent of Stillwell, aided, abetted, or encouraged him in the act, that the jury should find him guilty.” This is a correct proposition of law: was there a sufficient foundation laid in the evidence to invoke its application? We think so. (The Reporters will give the evidence.)

We have examined each assignment made. Though there are quite a number of interesting questions presented, we have failed to discover such error as will require a reversal of the judgment, except the first discussed in this opinion. The court should have sustained the plea of the defendant to the power and jurisdiction of the special judge to preside in the case.

For this error the judgment is reversed and the cause remanded.

Reversed and remanded.