Bumry v. State , 150 Tex. Crim. 6 ( 1946 )

Appellant in her motion for a rehearing seriously contends that in disposing of this case on original submission, we erred in several respects.

Her first contention is that she was tried and convicted in her absence while confined in jail. This question was raised by Bill of Exception No. 6 where the entire proceedings are set forth and from which it appears that when the special venire was called to ascertain how many of the prospective juror's were present, it was discovered that two were absent. However, at 1:30 P. M., these two men appeared and were sworn to answer questions as to their qualifications at which time defendant was brought from jail to the court house. Thereupon, appellant filed a motion for a continuance. The court then recessed until 9:00 A. M. of the next day. When the call of the jury panel began, the defendant being present, each juror was questioned by both State and defendant touching their qualifications as jurors in the absence of the other prospective jurors. We see nothing in the record which shows that she was tried in her absence.

She next asserts that we erred in not sustaining her contention that the trial court erred in not sustaining her motion to quash the indictment. There is no merit in this. The second and fourth counts of indictment are sufficient to charge an offense.

She next claims that this court erred in not sustaining her contention that the trial court erred in not sustaining her motion to require the State to elect upon which count it would seek a conviction. The court overruled her motion and submitted the case to the jury on counts 2 and 4, each of which charged her with the offense of the murder of Simon Zachary. The only difference in the two counts is in charging the means employed to accomplish the murder. In this there is no error. See note 35 under Art. 417, Vernon's Ann. C. C. P. where many authorities are cited sustaining the ruling of the court.

There are other matters raised in the motion which we did not discuss on original submission because we found the same to be without merit. However, we have re-examined the same and are still of the opinion that no reversible error is shown by any of the bills of exception, and we see no need for an extended discussion thereof.

Being of the opinion that the case was properly disposed of on original submission, the motion for rehearing is overruled.

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.