Harris v. State , 91 Tex. Crim. 446 ( 1922 )

The appeal is from a judgment convicting the appellant of robbery and fixing his punishment at confinement in the penitentiary for a period of five years. Needham v. State,90 Tex. Crim. 86, is a companion case.

Exception was reserved to the refusal of the court to quash the special venire writ. In drawing the veniremen, the clerk put into the box the names of all the persons designated by the jury commissioners for regular jury service, amounting to two hundred and seventy men. Of these, one hundred had previously been drawn one time for special venire service, and on the list drawn for appellant there were the names of twenty-nine veniremen previously drawn for service on another special venire. Twenty of these failed to respond to the summon, and in completing the jury, it was necessary for the sheriff to summon talesmen.

Article 660a requires that in drawing the special venire, the clerk shall put into the box upon slips of paper the names of the persons selected for jury service during the term. See Acts of 36th Leg., Chap. 37.

In Article 661 it is said, in substance, that when the names of the persons summoned to do jury service for the term shall have been drawn one time on a special venire, the special venire list required by R.S., Art. 5137 shall be used for subsequent venires, and it has been held that those drawn one time should be omitted in the drawing of special veniremen from the list of regular jurors. Saye v. State, 50 Tex.Crim. Rep.. This procedure was not followed in the instant case, as indicated above. The statutory provisions designating the persons from whom a special venire shall be selected have generally been held to require observance unless an absence of injury appears. For instance, where the statute authorized sixty men to be summoned for the special venire, the selection of seventy-five was held error. Harrison v. State, 3 Texas Crim. App. 563. It was also held error to mix the names designated by the jury commissioners for special venire service with those selected for regular service and draw the venire from the whole. Moore v. State, 49 Tex. Crim. 629; Johnson v. State, 86 Tex.Crim. Rep..

In Clayton's case, 83 Tex.Crim. Rep., it was held error to use a part only of the persons selected by the jury commissioners for jury service for the term who were available for special venire under Articles 660 and 661, supra, and to supplement them with persons summoned by the sheriff, the court holding that the statute should have been followed and the list of jurors selected by the jury commissioners used.

In Gunn's case, 90 Tex.Crim. Rep., the action of the officers in drawing the venire list in failing to take the names as they came from the wheel, as provided by Article 660, Vernon's Code of Crim. Proc., was held to require that the venire writ be quashed on motion.

In Oates' case, 48 Tex.Crim. Rep., the facts revealed that the court, in drawing the special venire,, failed to follow the provisions of Article 647 as it then existed and which designated the persons from whom the special venire list should be drawn. The refusal to quash upon that ground was held error.

In Hunter's case, 34 Tex.Crim. Rep., the court ordered a venire of ninety men. But sixty were drawn by the clerk. It became necessary to resort to talesmen to secure the jury. The denial of the motion to quash was held error fatal to the conviction. It was there said, in substance, that the purpose of the statute providing the list of men from which to drawn the special venire was to withdraw as far as practicable from the hands of the sheriff and his deputies the selection of jurors, and that the action of the clerk in reducing the number of the special venire having rendered it necessary to resort to talesmen, its effect was to defeat the purpose of the law. Illustrating the rule which we have stated above, we mention the cases of Horn v. State, 50 Tex.Crim. Rep.; Osborne v. State, 23 Tex.Crim. Rep.; Funk v. State, 84 Tex. Crim. 402; Bates v. State, 43 Tex.Crim. Rep.; Logan v. State, 54 Tex.Crim. Rep.; Knight v. State, 66 Tex. Crim. 335; 147 S.W. Rep. 268. We also refer to numerous cases listed by Mr. Branch in his Ann. Tex. Penal Code, Sec. 523. The court in the instant case had, in accordance with the law, ordered a special venire of one hundred men for the trial of appellant's case. See Code of Crim. Proc., Art. 655 and 668. The procedure pursued resulted in drawing but seventy-one men from the list which the law required should be used. From these a jury was not obtained, and it became necessary to complete the jury from talesmen summoned by the sheriff. It is therefore made apparent that appellant's right to the special venire which the law and the order of the court entitled him was curtailed. He did not waive his rights but asserted them in a proper and timely manner. His motion to quash the venire should have been sustained and a new venire ordered and drawn in accord with the law.

The injured party, appellant Harris, and others were engaged in gambling with cards. Russell Jones entered the apartment, exhibited a pistol and directed the appellant to get from the injured party and others their money. This he did, taking from Rausheck about $400.

It is appellant's theory that in so doing he acted under duress. The State contends that he acted with Jones in pursuance of previous agreement.

Jones was wounded in the flight with officers after the robbery, and upon the trial, he testified as a witness for the State on the promise of immunity. He stated, in substance, that the robbery was prearranged by agreement with him and the appellant and others whom he named; that it was conducted in accord with the plan designed. See Needham v. State, supra.

It is urged that the evidence indicating that appellant's part in the robbery was taken as a result of coercion upon the part of Jones at the time of the robbery, is apparently conclusive and that in the absence of evidence sufficient (as measured by the legal rule pertaining to the corroboration of accomplice testimony) to show appellant's connection with the conspiracy, the conviction must fall. In our judgment, the record is not bare of such evidence. There was testimony showing the association of appellant and Jones and others named by Jones as co-conspirators antecedent to the robbery. Those named by Jones as his confederates were either present at the time of the robbery or nearby, performing the parts which, according to the testimony of Jones, had been previously assigned to them. The conduct of the appellant during the game of cards in which he took part, his leaving it and re-entering it, were described and denominated unusual. The confederates designated by Jones were companions of the appellant after the robbery. All these matters, including the fact that appellant, when addressed by Jones in these words: "Big Boy, I deputize you to get the money," proceeded with alacrity to search those present and to carefully abstract all of their funds, placing the money in a cap which was later handed to Jones, bear on the motive with which he acted. The part he took, in connection with the other evidence, to which we have adverted, his demeanor before and after the robbery, we think was sufficient to authorize the jury to determine that the testimony of Jones to the effect that the appellant was a party to the conspiracy was corroborated. Under our Penal Code, an act done under duress is not crime. Penal Code, Art. 44; Branch's Ann. Tex. Penal Code, p. 24; Branch's Crim. Law, sec. 299. Whether he was under dress or merely pretended to be so was a question of fact to be solved by the jury from the evidence before it. Stanley v. State, 16 Texas Crim. App. 401. That Jones commanded him to search the victims and take the money from them and that he obeyed raises the issue of duress or coercion, but was not conclusive. The command and the obedience were entirely consistent with the testimony of the accomplice Jones; so was the presence of the appellant and the other confederates named by Jones. The part performed in the robbery by the appellant and others was that which Jones said to be done. The intent with which the appellant acted was, we think, an inquiry for the jury. The precedents upon the subject of duress and coercion are most often found among those cases in which the husband and wife have acted together in the commission of an offense, and in them the rule seems to be uniform, that the presumption that she acted under coercion from her husband is but prima facie, and that from her participation and attending circumstances the jury is permitted to hold her responsible. Miller v. State, 25 Wis. St. Rep. 389; Russell on Crimes, 7th Eng. Ed., 95; People v. Wright, 38 Mich. St. Rep. 745; Edwards v. State, 27 Ark. St. Rep. 493; Arp v. State, 27 Ark. St. Rep. 357 and notes. We find, however, that the Supreme Court of Alabama, reviewing a judgment in which the death penalty was assessed, refused to disturb the verdict because of testimony to the effect that the homicide was committed by the accused under duress of two persons present at the time of the homicide, each armed with a double-barrel shotgun and threatening to kill him unless he killed the deceased. There was other testimony, however, to the effect that after the blow was struck, the accused rifled the pockets of the deceased of money found thereon, and some evidence supporting the idea that he might by diligence have escaped without committing the homicide. The court expressed the opinion that the motive which impelled the accused was a question of fact. In the instant case, a like question of fact arose and was submitted to the jury, accompanied by an instruction fully safeguarding the appellant's rights to immunity from conviction upon the uncorroborated testimony of the accomplice Jones.

We find no error save that committed in the refusal to sustain the motion to quash the special venire. Because of that, the judgment is reversed and the cause remanded.

Reversed and remanded.

ON REHEARING. May 10, 1922.