Lacy v. State , 137 Tex. Crim. 362 ( 1939 )

Appellant urges that we should have held the matters complained of in bills of exceptions numbers nine and ten to have presented reversible error. We have again examined the record in its entirety and the said bills particularly. The substance of the bills is set out in our original opinion, to which reference is made. In appraising objections to argument the whole record must be looked to in order to determine if the remarks complained of probably injured appellant. The State contended that appellant had been detected in the theft of a hog belonging to deceased and killed him to avoid prosecution. Appellant defended on the ground that one Beasley stole the hog and forced appellant to kill deceased in order that he (Beasley) might escape prosecution. These theories were presented to the jury under appropriate instructions. The jury accepted the evidence sustaining the State's theory. We discover nothing in the incidents complained of in the two bills which was calculated to bring about such action on the jury's part. Neither are we impressed with the idea that anything in such incidents could have influenced the jury in arriving at the punishment. The mere facts justify the severest penalty. Appellant cites a number of cases as supporting his contention. Because of the varying facts of each case precedents are of little value in aiding us to reach a correct conclusion on complaints of arguments. In Threadgill v. State, 124 Tex. Crim. 287,61 S.W.2d 821 — citing many authorities — it is said: "In appraising the complaint of the argument of counsel, there must be considered not only the argument (unless it offends against some statutory provision), but the setting in which it appears, the evidence in the case, and the verdict of the jury."

Applying as best we are able said general rule under the facts here present we feel that the incidents complained of are not such as to call for a reversal.

Appellant insists that bill of exception number eleven reflects reversible error. Said bill recites that the trial court, over appellant's challenge for cause, held qualified a prospective juror who was a constable; that appellant used a peremptory challenge to excuse said juror; that after appellant had exhausted all of his peremptory challenges he was forced to take a juror whom the bill says appellant "undertook to challenge * * * for cause." In our original opinion the bill was disposed of on the ground that a constable was not per se disqualified as a juror. It is upon that holding our opinion is challenged. We pretermit further discussion of that feature of the bill. The present writer expresses no opinion thereon, but is impressed with the statement in Chapman v. State,66 Tex. Crim. 489, 147 S.W. 580, where a deputy sheriff was held a qualified juror by the trial court, and the defendant failed to challenge peremptorily. The court said under those circumstances it was not necessary to discuss the bill, but Judge Davidson observed: "While we have held in a case or two, under some circumstances, that this character of juror might not be objectionable, or sufficiently so, at least, to cause a reversal, we are of opinion that in cases as shown by this bill of exception such jurors ought not to be summoned on a jury. There are plenty of jurors who are not engaged in the discharge of duties as officers and actively engaged in assisting the State. The juror ought to be impartial. Jurors of this sort ought not to be selected by the sheriff to sit on juries, under the circumstances here detailed."

However, if the trial court was in error in his ruling with reference to the constable being a qualified juror, the bill is not thought to reflect error in regard to the juror Beason. Although the court may erroneously overrule a challenge for cause to a juror and thereby force defendant to use a peremptory challenge, and after he has exhausted all of his said challenges, he presents no error by complaining merely that he was thereafter forced to take an "objectionable" juror. The complaint must go further and show some cause for objection which would likely affect his competency or impartiality. As was said in Hudson v. State, 28 Tex.Crim. R.; "Without some such showing it is idle simply to say that a juror is objectionable." See Sutton v. State, 20 S.W. 564 and cases therein cited; Johnson v. State, 108 Tex.Crim. R., 1 S.W.2d 896; Grille v. State, 20 S.W.2d 424; Sobieski v. State, 126 Tex.Crim. R., 71 S.W.2d 534. Mr. Branch in his Ann. Tex. P. C., page 280, states the rule as follows: "Even if it is shown that the peremptory challenges were exhausted, the bill of exceptions is not sufficient if it merely recited therein that an objectionable juror was forced on defendant and there is a failure to show what facts made him objectionable. * * * It is not enough that the bill of exceptions recites that an objectionable juror sat on the case, but it must be shown wherein such juror was objectionable or what facts tended to prevent him from being a fair and impartial juror."

Many authorities are cited supporting the text.

All we have here is a recital in the bill that appellant "undertook" to challenge the juror Beason "for cause," there being an absence of any showing as to facts which might have made him subject to challenge for cause. To say that such a bill reflected error would amount to holding as a matter of law that such a juror was "objectionable" simply because appellant undertook to challenge for cause, when in fact there might exist no basis for such a challenge.

We regard the other matters presented in appellant's motion as having been sufficiently discussed and properly disposed of in our original opinion.

The motion for rehearing is overruled.