Duncan v. State

The appellant was convicted in the District Court of Hopkins County for the offense of murder and his punishment assessed at confinement in the penitentiary for a term of seventeen years.

Appellant contends that the judgment of conviction is void for the reason that the judge who presided upon the trial of the case was related within the third degree by consanguinity to the deceased, Joe Sims. It was appellant's contention that Judge J. M. Melson was a second cousin of deceased. It is conceded by the state that if such was the fact, the judgment was void for the reason that under the authorities second cousins are within the third degree, and under the law relation to the court of the deceased within the third degree disqualifies the Judge. Art. 552, C. C. P. Gresham v. State,66 S.W. 845.

The state also concedes that the statement of facts adduced on motion for a new trial shows that one John Philip Orr, 88 years of age, testified unequivocally that Judge Melson and deceased were second cousins. The record on motion for a new trial also discloses that Orr was related to both the deceased and to Judge Melson. A part of this witness' testimony was based on what his mother had told him while living, but it was undisputed that his mother was dead at the time of his testimony and under the authorities his testimony as to what his mother told him was admissible. Family history, under the many decisions in this state, is admissible for the purpose of showing relationship. Roan v. State, 124 S.W. 668.

There was no testimony in the record contradicting that of this witness. Judge Melson himself testified on the motion for a new trial, but his testimony went no further than to say that he did not know of the relationship. Quoting from his testimony he said: "I am not in a position to deny or concur in what Mr. Orr says." In fact the state in his brief concedes that the Judge's testimony goes no further than to say that he did not know and was not in a position to deny or concur in what was testified. This is all the testimony introduced on the issue, no other witnesses being heard thereon and we think it clear that no issue of fact was raised as such relationship, but on the contrary, we hold that the record establishes the fact beyond dispute that the trial judge and the deceased were second cousins. This being true, the district judge was without authority to try the case under the express terms of the statute and the judgment rendered by him condemning the appellant to the penitentiary is without authority of law, and void.

From what has been said, it follows that the judgment should be reversed and the cause remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.