January v. State , 36 Tex. Crim. 488 ( 1896 )

Appellant was convicted of malicious mischief, in killing a hog with intent to injure the owner thereof. The information charges that the appellant did wantonly wound and kill one hog, the corporeal personal property of W.E. Whitton, with the intent of said Derus January then and there to injure the owner of the said hog. Counsel for appellant, when the case was called for trial, interposed an objection to the qualification of Hon. R.B. Whitton, County Judge, to try this case. This objection was in writing, and alleges that W.E. Whitton (the owner of the hog) and the Hon. R.B. Whitton, County Judge, are brothers. Counsel proposed to prove the fact that they were brothers. The County Attorney, W.W. Berzette, demurred to the plea suggesting the relationship between the County Judge and the owner of the property, upon the ground that it suggested no grounds of disqualification as to the trial judge. Counsel for appellant, in briefing this case, did so upon the hypothesis that the demurrer to the plea was sustained by the court below, and assigns for error the judgment of the court overruling his plea. The record fails to show that the plea was ever called to the attention of the court in any manner. It may have been, and the demurrer thereto sustained, but the record is silent in regard to this matter. The record, however, shows beyond any sort of doubt that the County Judge, the Hon. R.B. Whitton, who tried this case, was the brother of W.E. Whitton, the owner of the hog which was shot and killed. If the shooting and killing of the hog, the property of W.E. Whitton, was such an injury to him as is contemplated by Art. 606, Code Crim. Proc., 1895, then R.B. Whitton, the County Judge, had no jurisdiction to try the case; and, if the record shows this fact, it is immaterial whether the plea setting up the disqualification of the County Judge was called to the attention of the court, or acted upon. As was said in Chambers v. Hodges, 23 Tex. 112: "Even though the parties agree to waive any objection to the disqualification of the judge, yet the judgment is a nullity, and the case stands precisely as though no judgment had been rendered." The question, therefore, before us, is whether or not the killing of the hog was such an injury as is contemplated by Art. 606, Code Crim. Proc., 1895. In Davis v. State, 44 Tex. 523, Roberts, Chief Justice, held: "The fact that the presiding judge was the person from whom the property was alleged to be stolen, in an indictment for theft, is not a good ground of disqualification, because he is not thereby shown to be 'interested' in the 'case,' not being a party thereto or liable to any loss or profit therefrom, otherwise than as any other person in the body politic." This decision was rendered in 1876, and the chief justice held that the judge "was not interested in the case." He did not pass upon the question as to whether Davis was injured by the theft. The only question decided was that he was not "interested in the case." In the Davis case, counsel based their objections to the disqualification of the judge upon the provisions of Const., 1869, Art. 5, § 11. Section 11 reads as follows: "No judge shall sit in any case where he may be interested, or where either of the parties may be connected with him by affinity or consanguinity, within such degrees as may be prescribed by law, or where he shall have been of counsel in the case." This section says nothing whatever about "injury." It speaks of the parties to the suit. It prohibits a judge to try a case in which he may be interested, or where he is related by affinity or consanguinity to the parties to the suit, or where he shall have been of counsel in the case. In a State case the prosecutor is not a party to the suit. The judge would not be interested in the case.

But in 1879, long after the Davis decision was rendered, the revisers inserted the following article: "No judge or Justice of the Peace shall sit in any case where he may be the party injured, or where he has been of counsel for the State or the accused, or where the accused or the party injured may be connected with him by consanguinity or affinity within the third degree." Code Crim. Proc., Art. 606. We notice that this article says nothing about being "interested in the case," but refers to the "party injured." If the judge be the party injured, or if he be related by consanguinity or affinity within the third degree to the party injured, he cannot try the case. The Davis case has no bearing upon the question before us. This information charges that the appellant shot a hog; that the hog was the property of W.E. Whitton; that the hog was shot with intent to injure W.E. Whitton. The hog was killed. Was W.E. Whitton the injured party? Evidently he was, unless we construe Art. 606, Code Crim. Proc., 1895, to mean only injuries to the person. We are not authorized to put any such construction upon this article. The article does not say "injury to the person;" it does not say "injury to property;" it does not say "injury to the character." It says the "injured party." It seems to us that, even without the statute, to hold that the judge could sit and try a man in a criminal case for stealing his horse, burning his house, or otherwise destroying his property, would not be proper; and certainly, in the face of the statute on the subject, there can be no question as to this matter. The statute, in our opinion, disqualifies the judge, if he be the injured party, or if he be related by consanguinity or affinity within the third degree to the injured party. The proof shows beyond question that the injured party was the brother of the judge who tried the case, and it was not competent for him to entertain jurisdiction of and try said case. When W.E. Whitton testified, the honorable judge knew that he was his brother; and when the witness swore that he was his brother, this settled the question; and the judge of his own motion should have, recused himself to try said case. No jeopardy could have attached, because the court had no jurisdiction of the case. There are a great many other things complained of in the brief of appellant. The record is very lengthy, considering the character of the offense (the shooting of a hog), and we do not deem it necessary to notice all of the matters complained of by appellant. We are not to be understood as sanctioning or disapproving the rulings of the court complained of in appellant's brief. Because the judge was disqualified to try this case, the judgment is reversed, and the cause remanded.

Reversed and Remanded.

HURT, Presiding Judge, absent.