
    NORMAN v. STATE.
    (No. 9379).
    (Court of Criminal Appeals of Texas.
    Oct. 7, 1925.
    State’s Rehearing Denied Nov. 18, 1925.)
    1. Judges <&wkey;l6(1) — Statute relative to selection of special-judges must be substantially complied with to sustain conviction.
    In absence of substantial compliance with., Code’ Cr. Proc. 1911, art. 620i, with respect to the selection of special judges, a conviction in case wherein such judge presided cannot be sustained.
    2. Judges &wkey;>l6(2) — Where administration of oath to special judge not disclosed by minutes of court, conviction cannot be sustained.
    Where minutes of court did not disclose administration of oath to special Judge as required by Code Cr. Proe. 1911, art. 620, conviction in trial wherein such judge presided cannot be sustained.
    On Motion for Rehearing.
    3. Witnesses <&wkey;393(3) — Error to admit for impeachment statements of accused made before grand jury while undler arrest.
    In prosecution for manslaughter, held, that under Code Cr. Proc. 1911, art. 810, statements made by accused before grand jury as to reason for killing deceased were erroneously admitted for purposes of impeachment, where accused was under arrest at time he was brought before grand jury.
    4. Homicide <&wkey;338(5) — Where maximum penalty imposed erroneous, admission of evidence could not be said not to be prejudicial.
    In ^prosecution for manslaughter, though evidence would seem to warrant a conviction for manslaughter or lower degree of offense, held, court could not say that erroneous admission of evidence was not prejudicial, where the highest penalty for manslaughter was imposed.
    Appeal from District Court, Red River County; R. J. Williams, Special Judge.
    Steve Norman was convicted of manslaughter and he appeals.
    Reversed and remanded.
    H. B. Birmingham and Chas. Roach, both of Paris, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is manslaughter; .punishment fixed at confinement in the penitentiary for a period of five years.

It appears from the record that a special judge presided at the trial. The statute indicates that the Legislature contemplated that the reason for and the manner of election of the special judge should be disclosed by the minutes of the court. In article 620, C. C. P., it is specifically declared that upon the selection of a special judge, he shall take the oath of office required by the Constitution 'of the State, and the fact that such oath was administered should be entered upon the minutes of the court and become a part of the record in the cause. The record in the present case is silent as to all of these matters. The uniform construction by this court has been that'in the absence of a substantial compliance with the statute mentioned, the conviction could not stand. See Smith v. State, 24 Tex. App. 290, 6 S. W. 40; Reed v. State, 55 Tex. Cr. R. 138, 114 5. W. 834; Dawes v. State, 87 Tex. Cr. R. 452, 222 S. W. 560. It is believed that the practice of this court to hold it imperative, where the record on appeal shows that the case was tried before a special judge, that the record should also show that he qualified by taking the oath of office, reflects a correct rule of practice to which adherence should be given.

In the present case, therefore, the judgment is reversed and the cause remanded.

On Motion for Rehearing.

On motion for rehearing by the state, the record has been perfected with reference to the election and qualification of the special judge.

Appellant was a young negro, about 19 years of age. He had been married but a short time. There was evidence to the effect that his wife had been criminally intimate with another negro by the name of Atkins. The deceased, Atkins, and the appellant were at a picnic on the day of the homicide. Appellant had been informed of the infidelity of his wife, and at the picnic she was associating with Atkins. Appellant expressed the desire that she go home with him. She demurred, and a quarrel ensued, in which she was struck by the appellant with a knife and a ^wound inflicted from which she died.

The state introduced the written confession of the appellant in which he explained the homicide in harmony with the theory'above stated. In the confession he recounted his various efforts to prevent the association of the deceased with Atkins. He described their conduct and his conversation with her. In his testimony given upon the trial, appellant gave a description of the incidents of the occasion of the homicide in harmony with the confession, stating in substance that he had taken his knife out of his pocket for another purpose and without the intention of striking his wife with it; that he had formed no intention of striking her; but that during the quarrel over her relations with Atkins and her reluctance to go home he, in a fit of passion, struck her with the knife without, at that time, intending to kill her.

While in jail, appellant was taken before the grand jury and interrogated. He was given1 the warning that his statements might be used against him but not in his favor, but the testimony given before the grand jury was not reduced to writing. Upon the trial, the members of the grand jury testified that during his examination in the grand jury room he was asked why he killed his wife, and he said: “Because she would not mind” him. The court instructed the jury that these remarks were usable for impeachment only. Appropriate objections were made to the receipt of the testimony, and in our opinion they should have been sustained. Appellant was under arrest at the time and was brought before the grand jury and the statements made while he was in custody. The evidence adduced was out of harmony with the written confession which the state had introduced, and also at variance with the appellant’s own testimony given upon the trial. >

The statute upon.the subject of confession forbids the introduction of one made while under arrest unless in writing and signed by the accused, except under certain circumstances which are not in the present case. Article 810, C. C. P. Vernon’s Tex. Crim. Stat. 1916, vol. 2, p. 750. The fact that the confession was made before the grand jury, and fhat the testimony adduced was used for impeachment purposes, does not exempt it from the operation of the statute. This rule has been announced in many decisions of this court. See Wisdom v. State, 42 Tex. Cr. R. 579, 61 S. W. 926; Oliver v. State, 81 Tex. Cr. R. 530, 197 S. W. 185; Bloxom v. State, 86 Tex. Cr. R. 562, 218 S. W. 1068; Williams v. State, 88 Tex. Cr. R. 95, 225 S. W. 177.

The evidence would warrant a verdict of manslaughter, or a lower grade of offense, depending on the intent, the knife used not being a deadly weapon per se; but taking note of the fact that the penalty assessed is the maximum permitted for the offense of manslaughter, we are not able to declare that the jury was not influenced to the prejudice of the appellant by the testimony improperly received.

Eor that reason the state’s motion for rehearing is overruled. 
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