McAllister v. State , 130 Tex. Crim. 262 ( 1936 )

The appellant was tried and convicted of the offense of murder and his punishment was assessed at death.

The record shows that the appellant and Richard Palmer first became acquainted in the year 1931, when both were serving a prison term at the Eastham state prison farm. After being released from prison they again met on or about the 25th day of March, 1935, in the city of San Antonio. While in San Antonio they agreed to go down into the "Valley" and engage in some hijacking, and left San Antonio armed with a pistol and a sawed-off shotgun. On the 30th day of March, 1935, while walking down the road leading out of Alice, they hailed a young man driving a Ford sedan. He stopped his car; appellant got in the back seat and Palmer got in the front seat next to the driver. From the appearance of the young man, he, appellant, judged he had a lot of money and would be a good man to hold up. As they were driving down a lonely stretch of road Palmer nodded his head, in accordance with their previous understanding, which meant for appellant to proceed with the hijacking. He thereupon drew his pistol from underneath his shirt, held the gun on deceased's back, and commanded him to stop the car. At the time this command was given Palmer jerked the key out of the switch and deceased looked back and remarked, "What's the matter?" As the car was being brought to a stop the appellant shot him in the back with the pistol. They then placed the deceased between the rear and the front seat of the car, covered him up as best they could, drove some distance down the highway, turned off onto a lateral road, where they took the deceased out of the car, stripped him of all his clothing except his shirt, tie, underwear, and a ring, and dumped him into some brush. After taking all of his personal belongings and putting them into the car they drove into Raymondville, thence to Harlingen, and then over to Rio Hondo where Palmer found his wife at a carnival, and where they remained during the night. The next morning they divided the loot; appellant taking some of the deceased's wearing apparel, the car, and then drove back through Harlingen and on to San Antonio where he was arrested and charged with the offense for which he was subsequently convicted. He made a voluntary confession giving a detailed statement of his and Palmer's connection with the death of the deceased.

The appellant's main complaint is that the court erred in overruling his motion in arrest of judgment and for a new trial. His contention is that the grand jury that returned the indictment was not a legal one by reason of the fact that W. E. Stout and Alfredo Garza, two of said jurors, were not qualified to sit on said grand jury by reason of the fact that neither of them had paid their poll tax for the year 1934. The indictment was returned by the grand jury on the 8th day of April, 1935. If said two men were qualified jurors, then the appellant's contention must be overruled. Looking to the act of the 29th Legislature, p. 207, c. 107, amending Article 3139 of the Revised Statutes of 1895, (which is now Article 2133, R. C. S., 1925) so as that same reads as follows: "He must be a citizen of the state and of the county in which he is to serve, and qualified under the constitution and laws to vote in said county; provided, that his failure to pay poll tax as required by law shall not be held to disqualify him for jury service in any instance," it is obvious that it is neither a disqualification nor cause for challenge that the juror has not paid his poll tax. In the case of King v. State, 100 S.W. 387, where the identical question as here presented was before the court the same was decided adversely to the appellant's contention.

We have examined the bills of exception one, two, three, four, and five and have come to the conclusion that neither of them present any reversible error.

It is therefore ordered that the judgment of the trial court be and the same is in all things affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.