Williams v. State , 126 Tex. Crim. 42 ( 1934 )

Appellant renews his complaint registered by bill of exception No. 1. Said bill reflects that on April 18, 1933, when this case was called for trial, appellant filed a written motion to disqualify the presiding judge, said motion being based on the following incident. The case had been tried before at a prior term of court and on June 18, 1932, the judge had overruled appellant's motion for new trial, incorporating in the order his finding on certain issues of fact which were controverted by the State, and also certain other findings regarded by appellant as expressive of the individual opinion of the judge as to appellant's guilt. The record shows that the court had no personal knowledge of the case, and that whatever expression indicating his belief of appellant's guilt, or other findings which were incorporated in the order overruling the motion, were based upon the evidence heard by the court. The order was regarded by appellant as being unauthorized under article 758 Cow. C. P., which reads: '

"In granting or refusing a new trial, the judge shall not sum up, discuss, or comment upon the evidence in the case, but shall simply grant or refuse the motion, without prejudice to either party."

On June 25, 1932, appellant filed a motion to have the order of June 18 expunged from the record, and requested that in lieu thereof the order simply show that appellant's motion for new trial had been overruled. The trial judge refused to expunge the order complained of. Appellant urges that the refusal of the court to change the order, and the findings and expressions contained therein, worked a disqualification of the judge. The bill of exception in question brings forward complaint of the action of the judge in declining to hold himself disqualified. Article 758 Cow. C. P. has been the subject of comment by this court on more than one occasion. A violation of its provisions will not call for a reversal of a judgment where complaint has been registered in the particular trial then being reviewed unless injury is shown. Rains v. State, 7 Texas App., 588; Johnson v. State, 31 Tex.Crim. Rep.,20 S.W. 985; Rocha v. State, 43 Tex.Crim. Rep.,63 S.W. 1020. Section 11, article 5 of the State Constitution reads, in part, as follows:

"No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case."

Article 552, C. C. P. reads as follows:

"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."

In Berry v. State, 83 Tex.Crim. Rep., 203 S.W. 901, this court expressed the opinion that the ground of disqualification of a judge set out in the Constitution and Statute mentioned appeared to be exclusive, citing in support thereof a number of authorities. Prejudice of the trial judge against the accused does not disqualify the judge, neither does expression of the judge indicating his belief in accused's guilt. The effect of such belief or opinion, when shown to exist, calls for a close scrutiny of the judge's ruling in the case at hand. Bismark v. State, 45 Tex.Crim. Rep.,73 S.W. 965; Gaines v. State, 38 Tex.Crim. Rep.; Drechsel v. State, 39 S.W. 678. The complaint brought forward in bill of exception No. 1 cannot be sustained and was properly disposed of in our original opinion.

In the two confessions of appellant which were introduced in evidence by the State it was recited that appellant was warned by both officers Myers and Spradley. The latter was not present at the trial. Myers testified that both he and Spradley gave the warning. By bill of exception No. 27 appellant brings forward complaint because Myers was permitted to testify, over objection, that it was hearsay, that he heard Spradley also give appellant the proper warning. Usually the warning is proven up by the party giving it, but we see no reason why proof thereof cannot be made by any witness who was present and heard it. A somewhat similar question was before the court in Ortega v. State, 58 S.W.2d 825, where the point was made that the correctness of the translation of a confession from Spanish into English could be proven only by the person doing the translating. The point was overruled.

We think appellant's suggestion that he was deprived of counsel cannot be sustained. The suggestion is predicated upon the following unfortunate occurrence. After the trial counsel prepared many bills of exception and turned them over to the trial judge for his approval. Many of the bills the court did not think it proper to approve without qualification. Before counsel could assent or dissent to the proposed qualifications he suffered serious injuries in an automobile accident and was for a long time totally unable to attend to any business whatever. In order that appellant be not deprived of his bills the court prepared bills of his own in lieu of many which he intended to qualify. The presumption prevails, in the absence of any showing to the contrary, that the bills prepared by the court correctly reflected the record. In view of such presumption it follows that appellant has been deprived of no right which could have been protected by counsel had he not sustained the accidental injuries mentioned.

Because of the death penalty having been assessed we have again examined carefully all of the bills of exception and find none of them reflect error upon which a reversal could be based. The statement of facts has likewise been again reviewed. The evidence to our minds amply sustains and warrants the verdict assessing the extreme penalty.

Counsel for appellant is to be commended for his zeal in behalf of his client. He has left nothing undone which could have been accomplished in his behalf. The facts were not of his making. They reflect a murder without excuse and for no cause except the hope of gain.

The motion for rehearing is overruled.

Overruled.