Venn v. State , 85 Tex. Crim. 151 ( 1919 )

This conviction was had in the County Court of Upshur County for violating the local option law. It being a misdemeanor, the prosecution was brought by complaint and information.

Appellant interposed a plea to the jurisdiction based upon the proposition that the Act of the recent Called Session of the Legislature enacting State-wide prohibition thereby repealed the local option law and its operation. The basis of this plea to the jurisdiction was that he, under those conditions, had the right to elect under which statute he should be tried, and demanded a trial under the State-wide prohibition act instead of local option statute. The court overruled the plea. Had the State-wide act been constitutional, another question would have been presented, but said Act is unconstitutional. See Ex parte Myers, 207 S.W. Rep., 100; White v. State, and Jarrott v. State, recently decided. A void Act of the Legislature cannot and does not repeal existing valid statutes, and, therefore, the void statute not being operative would furnish no ground for an accused to elect under which act he would be prosecuted, or to elect as to which punishment should be inflicted in case of a conviction. The court, therefore, did not err in overruling appellant's contention.

Challenge for cause was urged against three jurors who had served in a previous case against appellant in which a verdict of guilty had been rendered. The theory of the cause of challenge was that the jurors were not fair, and were either biased or prejudiced, or had come to some conclusion as to defendant's guilt by reason of the facts in the prior case. Had the two cases been based upon the same or similar facts, the challenge for cause should have been sustained, but if not the court correctly overruled the challenges. See Segars v. State, 35 Tex. Crim. 45; Oberchain v. State, 35 Tex.Crim. Rep.; Arnold v. State, 38 Tex.Crim. Rep.; Irvine v. State, 55 Tex. Crim. 347; Edgar v. State, 59 Tex.Crim. Rep.. A number of other cases could be cited to the same effect. There is a line of cases holding that where the facts are the same or similar in both cases, challenge for cause should be sustained, but as the facts in this case are not similar to those had in the trial of the former case, we are of opinion that line of cases does not obtain here. The facts in this case and the prior case are not similar. The sale was at different times to different parties and under different circumstances. The evidence introduced on the former trial was not before the jury in the instant case. The jurors fully qualified by answers on their voir dire and the court qualified the bill by stating the facts were entirely different in the two cases, and, therefore, he overruled the challenges for cause.

As presented we are of opinion there is no such error shown under the cases above cited as would require this court to reverse the judgment; it is, therefore, affirmed.

Affirmed.