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to the rules of the employer and good service, said to the jury, complained of. The mere to him. That in our government, under our objections on his part, given above in his system, the power to punish or to inflict a penalty for felony rests with the jurors. That | bill, by no means and in no way proved themour law provides that no man can be tried for selves. It is not shown that either of the felony, except by a jury. The jury therefore jurors who heard the court and sat as a juror is an indispensable and all-important branch of in this case, on their voir dire examination the court, and each of you, therefore, are offi cers of the court. Your responsibility is a

or otherwise, in the slightest way indicated grave one. As upon the manner in which you that what the judge said could or did indischarge your duty depends the character of fluence them against appellant in this case. government we will have. If you are a respeco He never objected to either of the jurors betor of no person but let the law, like the dews of Heaven, fall equally and alike on all, visit cause of the remarks of the court or othering penalties where the law and the evidence wise. He voluntarily accepted them, as warrant them, violation of the law. will become shown by the court's qualification of his bill. less frequent year by year. But if the juries of the country become lax in this respect, and This presents no error. through lenience, or personal favoritism, over- [2] Appellant made no motion for a conlook cases where the evidence shows willful tinuance. He did file a motion, however, to violations of the law beyond a reasonable doubt, and points unerringly to the parties being tried postpone the trial of the case for 10 days to as the one who committed the infraction, crime give him an opportunity to examine the list will increase year by year. But, gentlemen, of jurors for the week for the purpose of dethis court desires no innocent man convicted termining whether he would exercise his perand none where there is a reasonable doubt as to guilt. In fact, gentlemen, it requires 13 men emptory challenges to any of the jurors. The in this court to convict a man, and, if the jury court overruled this, and, in approving appelshould make a mistake and convict in an im- lant's bill on the subject, explained the matproper case, this court would unhesitatingly set the conviction aside. In fact, the court has

ter as follows: done so many times in this district. I simply "The action and ruling of the court was one mention this to show you that, while the court that applied to all parties in the court, includdesires the law upheld and the guilty brought | ing this defendant. From experience, the trial to justice, it is far from desiring any innocent court had learned, Hood county being a small man convicted. The laws are made to protect county, that interested parties and their friends the innocent as well as to punish the guilty." bad been in the habit of getting the jury list as When the court said this, .appellant ex and energy, or in some way, disqualifying all of

soon as the same was opened, and by diligence cepted thereto upon the grounds that it was the men on said list who were objectionable to detrimental to his rights, calculated to prej. the parties to be tried prior to the sitting of udice his rights before the jury and to lead with the desire that men drawn by the jury

the court; and to prevent this mischief, and the jurors to believe that the court desired commissioners should not be designedly disthem to convict and that in case they did in qualified by a defendant or his friends before an improper case, the court would thereafter court convened, and out of a desire that a fair protect his rights, and the jurors were there-trial, the court some years ago established the

and just jury should be bad in every criminal fore much more ready to convict than they rule, and has rigidly adhered to it down to and would have been, but for what the judge said including the date of this trial, that the names to them and their belief that the court would of the jurors drawn by the jury commissioners

should not be given out until the week for rectify any error in convicting. The court, which said jurors were to perform service. in allowing the bill, qualified it as follows: The court further certifies that the jury list "That four of the jurors who heard the lec

was delivered to counsel for the defendant imture sat upon the trial of the defendant; that mediately after the jury for the week had been the defendant did not exhaust his peremptory impaneled by the court, and that counsel were challenges on the panel for the week, but vol- given all the time they asked in which to inuntarily accepted said four jurors when he had yestigate, confer about, and pass on the various ample challenges to strike them; and that it jurors on said list. Had counsel desired furwas not made known to the court thereafter ther time, the court would certainly have grantthat any objectionable juror was taken by ed it to them, before they were required to the defendant."

challenge the jurors. But they took all the

time that they desired and voluntarily returnIn contending that this presents reversible ed to the court their list with their peremptory error, appellant cites us to Jones v. State, 51 challenges thereon and expressed no desire S. W. 949; Attaway v. State, 41 Tex. Cr. R. whatever for further time to investigate the 395, 55 S. W. 45; Chapman v. State, 42 Tex. | four jurors were procured from the regular

panel. The court further certifies that only Cr. R. 135, 57 S. W. 965; Murphy v. State, 57 panel; such a great number disqualified before S. W. 967. We have examined those cases, the defendant was required to challenge. And and think this case and what the judge said the court further certifies that the defendant

had more than enough challenges to have chalis nothing like what was objected to and lenged each of said four jurors at the time his held error by the judge of the lower court in list was returned to the clerk, but he declined said cases.

to do so. The court in this case gave a full, com- Appellant's complaint was that, prior to plete, and accurate charge submitting every the term of the court, the district judge had issue raised and all issues that were raised instructed the clerk and sheriff to permit no in appellant's favor. There is no complaint one to see said jury list and panel for that whatever to the charge of the court. Besides week until the court convened and the jury · this, appellant in no way in his bill or other for the week was impaneled; and appellant wise shows that appellant was injured or complained that he and his attorneys were could have been injured by what the court thus deprived of seeing said list because of

the action of the court and the officers in sly discovered evidence, it and the record show obedience thereto.

that his motion and the evidence supporting It is the policy of the law, clearly shown it are wholly insufficient to show any error by the legislation on the subject and our stat- by the lower court. Clearly he did not bring utes, that fair and impartial and competent himself within the rules authorizing the court jurors shall be selected to serve as jurors for to grant a new trial on the ground of newly every week of court and for every case that discovered evidence. is tried. Among other things the jury com [4] It is well established by the decisions missioners who select the list of jurors for of this court that a motion for new trial on each term of court are required to do so se this ground is closely scrutinized, and is cretly and privately, and each to take an largely confided to the discretion of the trial oath that he will not knowingly elect any court; and the disposition there made of it man as a juryman whom he believes to be un- will not be disturbed on appeal, unless it be fit and not qualified; that he will not make apparent that the trial court abused its disknown to any one the name of any juryman cretion to the prejudice of appellant. Burns selected and reported to the court; that he v. State, 12 Tex. App. 270; Bell v. State, 1 will not, directly or indirectly, converse with Tex. App. 598; Templeton v. State, 5 Tex. any one selected as a jury man concerning the App. 398; Shaw v. State, 27 Tex. 750 ; West merits of any case to be tried at the term of v. State, 2 Tex. App. 209; Terry v. State, 3 the court for which the jurors are selected. Tex. App. 236. The object and purpose of the statute in au [5] It is also well established that, in a mothorizing the clerk to open the envelope of the tion for new trial on this ground, it is inlists of jurors selected by the jury commission-cumbent on the appellant to satisfy the court: ers for the week 10 to 30 days before court (1) That the evidence has come to his knowlconvenes is that the sheriff shall have time to edge since the former trial; (2) that it was summon them, and that the jurors shall have not owing to want of due diligence on his time to arrange for their attendance. It was part that it was not discovered and did not not intended thereby to give litigants the op- come to his knowledge before the trial; (3) portunity by themselves and their friends to that it is competent and material evidence tamper with the jurors who are selected. and not merely cumulative, corroborative, or The judge, in his qualification of appellant's i collateral; (4) that it will probably produce bill on this subject, shows a most commend a different verdict if a new trial is granted; able object and purpose on his part to pre- (5) that it is not simply for the purpose of serve fair and impartial jurors and to pre- impeaching, a former witness. If the applivent their being tampered with by litigants, cation is defective in establishing any one of and his action, as he shows, was caused by these essentials, a new trial should be rethe necessity therefor. Besides this, his quali- fused. Fisher v. State, 30 Tex. App. 502, 18 fication of the bill shows that, when appellant S. W. 90; West v. State, supra; White v. did get the list of the jurors, he had all time State, 10 Tex. App. 167; Shaw v. State, suand all opportunity to pass upon the jurors, pra; Duval v. State, 8 Tex. App. 370; Gross and to exercise his challenges which he claim v. State, 4 Tex. App. 249; Hutchinson v. ed he wanted the case postponed 10 days to en- State, 6 Tex. App. 468. able him to do. No error whatever is shown [6] The only other ground presented by apin this matter.

pellant in his brief, and necessary to be con[3] In one ground of his motion for new trial sidered, is shown by his bill of exception No. be complained that the court erred in refusing 4. This bill is very meager, and from it this him a new trial because of claimed newly dis- court could not possibly tell whether any ercovered evidence. In another ground, on the ror had been committed. It merely states claimed misconduct of the jury in commenting that the state's witness, Lula Beauchamp, on appellant's failure to testify. The state con- wife of the deceased, was permitted to testitested appellant's motion on both of these fy over his objections that the “reason she grounds. The judgment of the court overrul- remained in the McGaughey home after the ing this motion shows that the court heard evi- death of W. L. McGaughey was that the said dence thereon and, after doing so, overruled McGaughey had willed her the property,” and the motion. No statement of facts heard on the that he objected thereto because the same was motion was filed in the court below before the opinion and conclusion of the witness and the court adjourned for the term. There is not the legal and proper way of proving a a bill of exceptions filed after term time pur- valid will. The court, in approving the bill, porting to show this evidence. Under a uni- explained it by stating: form and unbroken line of decisions of this

"That the defense was contending that the court, such statement, however attempted to Beauchamps were trespassers in the McGaughbe preserved, cannot be considered unless filed ey home and were doing wrong in remaining

there, and this witness was permitted to tesbefore the court adjourns. See Graham v.

tify that she remained there under a claim of State, 163 S. W. 730, where some of the cases right because Col. W. L. McGaughey had willed are cited. So that we cannot consider this her certain interests in the property." matter. Even if we could, the evidence Clearly this bill shows no error. If we shown by said bill positively disproves the al- could go to the statement of facts, we would leged misconduct of the jury. As to the new- find that this statement by the witness was

er cases.

clearly admissible under the facts of this , charge as required by legislative enactment, case. We deem it unnecessary to go into any it would not be permitted to stand and would extended statement of the matter to show necessarily operate a reversal. No lawyer this. It is necessary for the bill to show of would sustain this act of the court, and no and within itself such a statement of facts as appellate court would dare sanction such a to show that the testimony was not admis- charge if given the jury in his written charge, sible, and the bill does not do this.

required by the statute on the trial of the The judgment will be affirmed.

case, and yet, when this charge was delivered

to the jury, they were not impaneled; there DAVIDSON, J. (dissenting). I am of the fore it could not possibly be legal. The court opinion that the affirmance of this case is er- has always held otherwise until the opinion roneous, and the rehearing ought to have been was delivered in this case and in the recent granted. It is unnecessary to repeat the case of Reed v. State, 168 S. W. 541. This verbal charge given the jurors before they case is in conflict with the following cases: were impaneled; it is sufficiently set out in Jones v. State, 51 S. W. 919; Attaway v. the majority opinion. Some of those jurors State, 41 Tex. Cr. R. 395, 55 S. W. 45; Chaptried appellant and convicted appellant. I

man v. State, 42 Tex. Cr. R. 135, 57 S. W. do not purpose taking up the reasons in de 965; Murphy v. State, 57 S. W. 967, and othtail why the trial courts should not give such

My Brethren dispose of all these charges as that complained of in this case, cases by the simple statement that: but will discuss it in a general way. Our stat

"This case and what the judge said is nothing ute and the Constitution provide that the ac- like what was objected to and held error by the cused shall have a fair trial by an impartial judge of the lower court in said cases." jury. To this end it is provided as a funda- The principle involved in the cases heretomental proposition that the court shall be the fore decided and in the decision of this and judge of the law, and the jury the exclusive the Reed Case is the same. There was some judges of the facts proved, credibility of the difference perhaps in grounds of objection witnesses, and the weight to be given the tes- and the language used in those cases from timony. To secure this it is expressly pro- that used in this case, but the mere difference vided the court shall give the law of the case in the language does not affect the principle in a written charge in all felonies, distinctly involved. setting forth the law applicable to the case, Referring to the verbal charge of the trial and the court is expressly prohibited from ex- court, we find this language: pressing any opinion on the weight of the tes- "But if the juries of the country become lax timony and from using any argument or state- in this respect, and through lenience, or perments calculated to influence the jury or to sonal favoritism, overlook cases where the evi

depce shows willful violations of the law bearouse their passions. All this is either con

yond a reasonable doubt, and points unerringstitutional or statutory, or it may be said to ly to the parties being tried as the one who be included in both. It is further provided committed the infraction, crime will increase that this charge shall be in writing and given year by year.” at the time set forth in the statute, and if it

Suppose this language had been given to is erroneous, so as to injure the accused, the the jury in the written charge, would there judgment shall be reversed, or, if it appears be any question of the fact that this court from the record that the accused has not had would reverse the judgment? No lawyer a fair and impartial trial, his conviction shall would affirm that such expressions were right be set aside. Acts 338 Legislature, pp. 278, and to be sustained under our constitutional 279. These statutes limit the authority of and statutory law. I do not believe my Breththe trial court, first, to giving a written ren would hold that such language was propcharge; second, the charge must set forth er in a written charge given to the jury. plainly the law of the case; third, it must be Again, take the expression from the verbal given after the evidence is introduced and be charge: fore the argument is begun; fourth, errors, if "In fact, gentlemen, it requires 13 men in committed, will require a reversal if calcu- this court to convict a man, and, if the jury

should make a mistake and convict in an im. lated to injure the rights of the accused or

proper case, this court would unhesitatingly set deprive him of a fair and impartial trial; the conviction aside.” fifth, it prohibits the judge from discussing It may be noted that a conviction did folthe facts or using any argument in his charge low, and the accused was alloted a term in calculated to arouse the sympathy or excite the penitentiary, and, under the judge's exthe passions of the jury (C. C. P. art. 736); pression that "it requires 13 men in this sixth, it prohibits the court from giving any court to convict a man,” we find that appellant charge of any sort in a felony case except in has been convicted, and the conviction was writing; seventh, this charge must be deliv- not set aside, I suppose, upon the theory that ered after the evidence is introduced and be the court believed this to be a proper case fore the argument is begun. The charge giv- and not within the category of what he called en by the court, as set forth in bill of excep- "an improper case." He evidently did not tions, was verbal. It was given before the believe this to be an improper case, but one defendant was even placed upon his trial, and in which a conviction should be bad. My was of such a nature, 1 given in written Brethren have concurred with the trial court

that this was not "an improper case.” The, was entitled to inspect the veniremen sumjury, therefore, in the opinion of the trial moned for the term after service upon them court and majority of this court, did not by the sheriff. The statute provides that not make a mistake in the conviction, but it oc more than 30 nor less than 10 days before curs to me that the trial court made a seri. the convening of the court the jury list shall ous error in charging the jury verbally as he be opened and given the sheriff, who shall did charge and before they were impaneled summon them not less than 3 days before to try appellant. This charge was upon mat- the convening of court and make his return. ters calculated to influence the action of the The judge intimates that he had been for jury, and especially when it tells them sub- some time protecting the purity of the jury stantially to resolve the doubt against the system of the county by ordering the clerk accused on the theory that the court would not to permit lawyers and parties to see a set it aside if they made a mistake. The list of the summoned jurors before court. I court did not set it aside, and, if there were suppose the theory of the judge was that they mistakes, he did not correct them on motion might be tampered with or something would for new trial. As I understand our law, the happen that might affect them in the disdoubt is always in favor of an accused when charge of their duties as jurors. The statcharged with a violation of the law, both as ute does not authorize this action by the to the law and the facts. If there be a doubt court. If the Legislature saw proper to do of the facts, that doubt redounds to the bene- so, and thought it was necessary, doubtless fit of the accused, as does the presumption of they would have done so; that is, that body innocence. These both are legally in his fa- would have prohibited parties from getting vor and fundamentally underlie our criminal a list of the summoned jurors, or in any way jurisprudence. If there be a reasonable having access to them. It has been my imdoubt of the facts, then there must be a pression of our jurisprudence, as found in the doubt as to the law, or, in other words, the statute, that parties were entitled to investilaw must be charged to fit all issues in the gate jurors who were to try them, or out of case, and the presumption of innocence and whom the accused was to select a jury, in reasonable doubt of the facts given in charge order that he might inform himself as to who to the jury upon every issue. This verbal were impartial. The value of this right is charge, as I understand it, resolved all these recognized and emphasized in the law and is matters against appellant. If the jury made thoroughly understood by the practitioners a mistake, the court would correct it, he and courts. It conduces to the fair trial and says. This, it occurs to me, is virtually in- impartial jury provided by the Constitution. structing the jury in the trial of criminal The Legislature has made ample provision to cases to resolve the doubt against the ac- protect jurors from being interfered with cused subject to correction by the trial court or tampered with by providing punishment if the jury made a mistake in so doing. against any one who will in any way seek to What effect this may have had upon that ju- influence a juror. They who do so are subry may be speculative. It cannot be told un- ject to criminal prosecutions and for conless we infer what it was by reason of the tempt of court for interfering with or trying conviction, but the charge was not the law, to influence jurors. There is no charge or and was wrong. It is contrary to the stat intimation that the accused in this case, or ute, and calculated to and doubtless did in any of his counsel, or his friends, were tryfluence the jury. Appellant was given a ing to influence the jury or have anything to lengthy term in the penitentiary for murder do with them. The only demand that was in the second degree. This court and the made by the accused was to see the list sumtrial court ought not to speculate as to re- moned by the sheriff. I make these few obsults when plain violations of the statute servations as I cannot agree with my Brethlaw are shown. Various positive enactments ren in the views they have expressed on this by statute were violated by this verbal question. Of course, if counsel for the defendcharge. The fact that the jurors were not ant or his friends should in any way tamper challenged for this cause did not cure the with jurors, there is a provision made for error set forth in the verbal charge to the their punishment. But that does not arise jury given in advance of their being impan- here, for there is no question of that sort. eled in the case. Error in charges, when in They simply demanded the right to get a list violation of the statutes bearing upon charg- of the jurors in that they might prepare for es to the jury, are neither waived nor cured trial. The views I have expressed in no wise by failure to challenge jurors. These stat- interfere or are in conflict with the statutory utes are upon a different subject and not enactment which requires the service of spedependent upon the statutes with reference cial venire in murder cases. That venire is to challenging jurors. Challenges might be to be served upon the defendant before his interposed or sought to be interposed, but trial for a given length of time in order that that would not change nor affect the law he may investigate the jurors from whom he with reference to violations of the statute is to select a panel to try him. in regard to charging juries.

There are other questions in the case, but There is one other question that I will no- I deem it unnecessary to discuss them. Some

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lieve this conviction ought to stand in the bon copy thereof, by one of the court stenog. face of the gravity of the error on the part raphers. In this dissenting opinion, after of the trial court in giving the verbal charge. discussing only two questions that were raisI therefore respectfully enter my dissent ed and fully considered by the court when

the original opinion was handed down, it is Additional Opinion.

said : PRENDERGAST, P. J. This case was

“There are other questions in the case, but submitted for decision on February 18, 1914. of them, I think, show error.

I deem it unnecessary to discuss them. Some At the time it was ably argued by two of appellant's eminent attorneys. They each

If that was true, or thought to be true, it then presented and urged the claimed er

seems to us that our attention should have rors and only those discussed and passed

been called thereto before the court adjourn. upon by the original opinion herein, and cited ed for the term.and the case had absolutels the same four cases hereinafter discussed. passed beyond our control as to any question The full court was present and heard all raised on the appeal. It seems to us also this. In addition, appellant, through his that in justice to the state, and especially same attorneys, by their written brief, urged to the appellant, should our attention have and presented the same claimed errors and been called thereto, before the case passed only those, and cited said four cases.

beyond our control as stated. The original opinion was considered in

We purposely refrained from stating the consultation by the full court on May 5, 1914, facts of this case in the original opinion. when it was read and the case passed upon. Under the circumstances, we now think it There was no intimation of dissent by either advisable, if not necessary, to state the maof the judges of this court at that time. The

terial facts. Most of them were uncontrooriginal opinion was handed down the next

verted. They are: day with the full court present. No murmur

In November, 1909, Col. and Mrs. W. L. of dissent was then heard.

McGaughey were old and somewhat feeble, On May 27, 1914, the case was again resub- especially Mrs. McGaughey. They were then mitted to the whole court on appellant's mo- living on their small farm of about 60 acres tion for a rehearing. It was again consider in the edge of the village of Tolar, in Hood ed by the whole court in consultation on county. They advertised for a housekeeperJune 23, 1914, when it was again determined for some one to take care of them. Appelby the court that there was no error what- lant was their only son—their only child. ever in the trial of the case, and that the He was living at Austin, Tex., holding down motion for rehearing should be overruled a job, a clerkship, in the General Land Ofwithout any written opinion. At that time, fice. He was about 40 years old, and unfor the first time, Judge DAVIDSON an

married. He only occasionally visited his nounced that he would not delay the handing

parents. He knew their condition. Mrs. down of the decision, the next day overrul. Tucker, a young widow, with one small child ing the motion for hearing, but said:

and with very limited means of support, per"Some matters have been called to my atten- haps none other than her own services, saw tion, and I desire to look into them."

the advertisement and got in communication The decision of the court overruling the with Col. McGaughey, which resulted in her motion for rehearing without any written going to Tolar and making arrangements opinion was announced the next day in open with Col. and Mrs. McGaughey to stay with court with a full court. For the first time, them, keep house for them, do all their work, 02 June 24th, as this decision was announc-cooking, ironing, washing, etc. This was eared on the motion for rehearing, we saw this ly in November, 1909. Mrs. McGaughey was indorsement on the original opinion:

then in very feeble health and quite old. "The rehearing ought to be granted.

Col, McGaughey was also quite old and some"Davidson, Judge.” what feeble. Mrs. McGaughey's condition Nothing else was heard or said about the continued to grow worse until in February, decision or the case until after this court, 1910, when she died. Prior to her death she under the Constitution, had terminated for besought Mrs. Tucker to promise to stay with the term, and the court had actually been and take care of Col. McGaughey after her adjourned for the term, which occurred Fri- departure until he died. Mrs. Tucker so day, June 26th, just after 12 o'clock noon. promised the dying Mrs. McGaughey, and she No dissenting opinion had at that time been faithfully kept her vow. Col. McGaughey filed, and none was filed until after the court survived until March 28, 1912, when he died. had adjourned for the term and the case had | Meantime, from the death of his wife, he absolutely passed from the control of the also became more feeble. Appellant knew all court, so far as any question raised on the this, but continued to hold down his job at the appeal was concerned.

Land Office, or elsewhere, only occasionally In the evening of the next day, June 27, visiting Tolar. 1914, for the first time, was our attention Soon after Mrs. Tucker began her services called to the fact that a dissenting opinion and devotion to Col. and Mrs. McGaughey, had been filed. Our attention was then Mr. Hardy Beauchamp, himself a young wid. called thereto, and we were furnished a car ower with one child, wooed and won her for

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