evidence that the defendant attempted to extort money from his victim four years prior to the murder
How later courts described this case
- evidence that the defendant attempted to extort money from his victim four years prior to the murder
Written by the judges who cited it.
The opinion
On Second Motion for Rehearing
MORRISON, Presiding Judge, and DAVIDSON, Judge.
Appellant seeks to file in this case a second motion for rehearing.
For grounds thereof, appellant says that Judge K. K. Woodley, a Judge of this Court who participated in the decision affirming this case, is related to the deceased in this case within the third degree by affinity.
If Judge Woodley was so related, then he is and was disqualified from sitting as a Judge in this case, and inasmuch as his participation therein was necessary to a dispose tion of the case, such would require that the judgment of affirmance be set aside and the case be re-submitted before a court composed of three qualified judges, for which relief the appellant so prays.
As it appears from the unchallenged and admittedly correct affidavit attached to appellant’s motion, Judge Woodley’s wife is a first cousin to the wife of a brother of the deceased in this case.
Does such fact show that Judge Wood-ley is related within the third degree, by affinity, to the deceased? If so, then Judge Woodley is disqualified, by the Constitution (Article V, Section 11) Vernon’s Ann.St. and by statute (Article 552, Vernon’s Ann.C.C.P.), from sitting as a Judge in this case, and the appellant should be granted the relief he seeks.
In Texas Employers’ Ins. Ass’n v. McMullin, Tex.Civ.App., 279 S.W.2d 699, 702 , we find Black’s Law Dictionary quoted as follows:
“Affinity is the tie which exists between one of the spouses with the kindred of the other: thus, the relations of my wife, her brothers, her sisters, her uncles, are allied to me by affinity, and my brothers, sisters, etc., are allied in the same way to my wife. But my brother and the sister of my wife are not allied by the ties of affinity.”
Harwell v. Morris, Tex.Civ.App., 143 S.W.2d 809 ; Cortez v. State, 144 Tex.Cr.R. 116 , 161 S.W.2d 495 ; and Seabrook v. First *640 National Bank of Port Lavaca, Tex.Civ.App., 171 S.W. 247 , support the above rule.
In the Cortez case it was said [ 144 Tex.Cr.R. 116 , 161 S.W.2d 497 ]:
“The groom and bride each come within,
The circle of each other’s kin, But kin and kin are still no more Related than they were before.”
See also 30 Am.Jur., Judges, sec. 144, p. 78.
It is apparent that under the rules stated Judge Woodley could not be and was not related by affinity to those who are related to his wife only by affinity — which is the situation here presented.
The application for permission to file a second motion for rehearing is denied.
Judge WOODLEY took no part in the preparation of this opinion.