Seals v. State , 35 Tex. Crim. 138 ( 1895 )

HURT, Presiding Judge.

Appellant was convicted of murder in the first degree, for the killing of one Adkins, and his punishment assessed at confinement in the penitentiary for life. Allen Knight, who served on the jury, was challenged for cause by appellant, the cause assigned being that he was a witness in the case. It appears from the record that the special venire was issued on the 15th day of May, 1895, and on the 22nd day of May, 1895 (the day before the trial of this case), the defendant’s attorney had fourteen of the special venire men summoned as witnesses. The juror, Allen Knight, was one of them. When his name was reached, the State waived the right to challenge, the juror having been summoned by the defendant, and the appellant then challenged the juror because he had him summoned. The court overruled this challenge. The juror was then taken by both parties. Subdivision 6, Art. 686, Code Cr. Proc., provides that a witness in the case is obnoxious to challenge for cause. Was Knight a witness in this case? He was not. The mere fact that a man is summoned as a witness does not make him a “witness,” within contemplation of this statute. A “witness,” within the meaning of this statute, is one who bears testimony or furnishes evidence of proof (Cent. Diet.), and not one who has merely been summoned to attend as witness. To hold that, because a man has been summoned as a witness, he would thereby become disqualified to sit as a juror in the case, would place it in the power of parties in a great many instances to defeat the object of the special venire. The reason for the law giving a challenge for cause because the proposed juror is a witness, can never apply to a man who has simply been summoned as a witness without any knowledge of any material fact. It is true they placed this man on the stand to prove something about distance, which was altogether immaterial, viewed in the light of the other testimony. On his voir dire, Plummer was not questioned as to whether he was a householder in the county or a freeholder in the State, nor whether he was a qualified voter in the county, and could read and write. Both parties accepted him. If, after verdict, it had been discovered that he possessed neither of these qualifications, appellant could not have complained, because it was his duty to question him in regard to these matters, although State’s counsel failed to do so. But, after being taken by both parties, the District Attorney then asked him the questions, and he answered all in the affirmative; whereupon the State accepted the juror again, and the appellant challenged him peremptorily. In this there was no possible injury to appellant. The District Attorney had a right to ask the questions, notwithstanding he had accepted the juror, and there was no injury to appellant in asking them. He (the appellant) was not forced by these proceedings to expend a challenge for cause or a peremptory challenge. He acted voluntarily in the exercise of his peremptory challenge. The proof in this case shows beyond any doubt that appellant calmly and deliberately assassinated the deceased. The judgment is affimed.

Affirmed.