The offense is manslaughter; punishment fixed at confinement in the penitentiary for a period of five years. *Page 6
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 Art. 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 Texas Crim. App. 290; Reed v. State, 55 Tex. Crim. 138; 114 S.W. Rep. 834; Dawes v. State, 222 S.W. Rep. 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.
Reversed and remanded.
ON MOTION FOR REHEARING.