The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-07-05
SATURDAY.

SATURDAY.
An opinion of special interest to
clerks of court was read Saturday by
Judge Wilson, in the case of r. Har-
ris VS. the state, from Brown
county, as follows:
ut appears from the record before
us that the trial and conviction in
this case were had before a special
Judge, but there is nothing in the
record to show by what authority
the special Judge presided in the trial
1t has been repeatedly held that an
appeal from a conviction had before a
special Judge, the record must set out
the proceedings whereby the special
Judge was constituted. Brinkley VS.
Haskins, 48 Tex, 225; McMurray VS.
state, 8 CT App, 207. Because of this
defect in the record, the judgment OF
conviction must be set aside. and the
cause remanded for new trial.
"On June 8, 1888, upon motion of
the assistant encouragement, GER
tiorari was issued from this county,
commanding the clerk of the district
court of Brown county to send up to
this court, without delay, a perfect
transcript of the record in
this cause, showing the election
or appointment of the special judge
who tried this cause, and the quail
lication of such special judge. 1t
appears from the return upon said
process made by the sheriff of Brown
county that it was duly served upon
&. Bea J., clerk of the district court OF
Brown county, on the 18th day OF
June, 1883. This case has been with
of
tion until the very last day of this
term of the court, awaiting Il perfect
transcript in obedience to the certior-
.ari, but there has been no response to
the certiorari by said clerk, and we
are now compelled to reverse the
Judgment and remand the cause, for
no other reason apparently than the
inexcusable carelessnesS of said clerk
We cannot permit such conduct to
pass unnoticed and unpublished. This
defendant is confined in Jail, and at
a heavy expense to the county, and
by this neglect of the clerk another
trial of the case is made necessary
and perhaps the continued imprison-
anent of the defendant for months.
Ample time has elapsed since the
service of the certiorari upon the
clerk for him to have had before this
court a perfect transcript. 1t APP
pears that he has, liz contempt of the
process of this court, refused to make
any response to the certiorari
In view of the facts as they appear to
this court, it is ordered that a fine OF
, fifty dollars $3.50 be and the same is
imposed upon said c. Bean, clerk OF
the district court of Brown county,
Texas, for failing to send up to this
eouIt a perfect transcript in this
cause, and for failing to answer the
writ of certiorari, served upon him
herein, which fine will be made final
at the next term of this court to be
held at Tyler, Texas, commencing on
the first Monday in October, 1888, I'M
less good cause he shown by said
clerk why the same should not be
made so final. And the clerk OF this
court will issue citation for said @.
Bean, clerk as aforesaid, notifying him
of this Judgment, and Summoning
him to appear before this court at its
said Tyler term on the first Wednes-
day of said term and show cause. If
any he can, why the judgment against
him should not be made final.
ave will here remark that in the fu-
ture this court, as far as it is within
its power, will hold to strict account
ability all officers who are entrusted
10y law with the enforcement or adj
administration of the criminal laws of
this state. Frequent derelictions OF
duty of the kind above noticed, make
it necessary that we should resort to
the powers of fine to correct the evil
The judgment of conviction in this
case is reversed, and the cause is re-
manded for new trial. Wilson, j
Other business was disposed of as
follows:
The case of Cleveland VS.. Duggan
Bros, from Guadalupe county, and
Jones VS.. Jones, from Hill county,
were transferred to Tyler.
The case of Day VS.. Heating, from
johnson county, was also transferred
to Tyler by agreement.
In Hogan VS.. state, from Milan
co .nty. motion for leave to file tran
script nunc pro tune was granted and
motion for rehearing was overruled
In Morley VS.. Hudson, from Brazos
county. an alias writ of certiorari
was ordered returnable at the Octo-
Der term at Tyler, to which term the
case is transferred.
The court finally adjourned fol- the
term to meet again at Tyler.