Horn v. State , 125 Tex. Crim. 59 ( 1933 )

Conviction is for murder, punishment being three years in the penitentiary.

No statement of facts is found in the record and only two bills of exception.

It appears from bill number one that appellant waived a special venire and agreed to select a jury from the regular jury panel for the week. After the jury for the week were sworn and questioned generally as to their qualifications they were retired from the court room, and called in separately, examined by counsel for the state and appellant, and accepted or excused. If accepted by both parties the juror was placed in the jury box, but was not at that time sworn; after the jury was completed the court administered the oath collectively. Appellant objected to thus swearing the jury, claiming that they should have been sworn individually as provided in article 622, C. C. P. (1925), and not as was done under article 639, C. C. P. (1925). The first article mentioned relates to impanneling the jury in capital cases and the second to the formation of the jury in cases less than capital. It may be that on account of appellant having waived a special venire the court proceeded under article 639 instead of article 622. In support of his contention appellant cites us to Story v. State, 107 Tex.Crim. Rep., 296 S.W. 296. While it was there held error not to swear the jurors individually it does not appear the reversal was predicated on such error alone. We believe Caldwell v. State, 12 Texas App., 302, more nearly in point. As we understand the record in the present case no complaint was made by appellant until the jury was sworn in collectively. If he desired them to be sworn individually as selected the court's attention should have been called to the matter at such a time that the request could have been complied with. In Caldwell's case (supra) the complaint was made in motion for new trial for the first time. It was held too late. It occurs to us the same principle applies here. When appellant did register objection it was too late to swear the jurors as selected.

Bill of exception number two complains because the court permitted the wife of deceased to testify that when he was brought home after having been cut he had ten dollars in his pocket, and that a few days before he had drawn some fifty dollars out of the bank. The evidence was objected to as being immaterial to any issue in the case, and as tending to show that appellant was guilty of robbery or theft. It is certified in the bill that there "was no evidence in the record, directly or indirectly connecting the defendant with the knowledge that the deceased had any money in the bank, or even drew any money out of the bank, or at any time ever had any money in his possession." It is impossible to appraise this bill without having before us the facts proven on the trial. While certifying to the matters contained in the above quotation from the bill, the court does not certify that the evidence objected to had no bearing on any issue in the case. Facts may have developed on the trial which made the evidence material. In the absence of the facts the court's action in admitting the evidence must be sustained. Presumably he acted correctly. The bill does not show to the contrary.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.