Whittle v. State , 43 Tex. Crim. 468 ( 1902 )

Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for a term of seven years.

Appellant moved to quash the array of jurors on the ground that one of the commissioners who drew the jury for that term of court was interested in three certain civil suits, being a party thereto; said suits requiring the intervention of a jury, and being on the jury docket; and, further, that said jury commissioners were not residents of different portions of the county. A reference to article 3145, Revised Civil Statutes, which prescribes the qualification of jury commissioners, requires, among other things, that they should be residents of different portions of the county, and that they shall have no suit in said court which requires the intervention of a jury. If the expression "shall be," in connection with the qualification of jury commissioners, is given a mandatory meaning, then a jury drawn by commissioners not possessing such qualifications would not be a legal jury, and the verdict rendered by such a body would not be a legal verdict. For instance, if one or more jury commissioners should be impaneled to select a jury who are not intelligent citizens, and unable to read and write, and not qualified jurors and freeholders of the county, are not residents of different portions of the county, or one or more of them happen to have a suit on the jury docket, then it would follow that all of the verdicts rendered by a jury so drawn could be vitiated. It has been held in a number of cases, where the language was equally as strong, prescribing the qualification of jurors, — for instance, that the juror shall be a freeholder, — this could not avail a defendant after verdict on motion for new trial. He must in such case go further, and show that probable injury resulted to him. Leeper v. State, 29 Texas Crim. App., 63; Williamson v. State, 36 Tex.Crim. Rep.; Mays v. State,36 Tex. Crim. 437. It has also been held that it was too late after verdict to raise the question, where a juror was not a citizen of the State twelve months prior to his service. Trueblood v. State, 1 Texas Crim. App., 650; Sutton v. State,31 Tex. Crim. 297. These cases, however, only establish that the objection comes too late after verdict. In this case the objection was made to the jury on their impanelment, so that we are squarely confronted with the question whether or not the refusal of the court to entertain the motion at the earliest moment when it could be made was error. If we so hold, unless each of the commissioners shall possess all of the qualifications prescribed, then in every case in which a jury is tendered, drawn by said commissioners, the jury list should be set aside, because the language in reference to each clause prescribing the qualifications of commissioners is equally mandatory; and because two of the commissioners should be residents of the same portion of the county would equally disqualify the jury drawn, as if it should turn out that they should not be qualified jurors and freeholders of the county. In order to impose this test, it is said that the rule that injury must be shown before a party can avail himself of the objections to the commissioners would be impossible; that the law having prescribed the machinery for the selection of the jury, he has suffered a legal injury, though it may not be possible to show any actual injury. It occurs to us if, because the machinery provided for the selection of jury commissioners has not been strictly followed, a jury drawn by them should be set aside on the ground that legal injury will be presumed, would be productive of such confusion as to produce a public hardship, which ought not to be brought about except upon the strongest reasons. Evidently the law-makers had this in view when they provided for the character of challenge to the array. Article 660, Code of Criminal Procedure, provides for a challenge to the array on the part of the State; and article 661 provides for a challenge on the part of defendant, to the effect that the officer summoning the jury has acted corruptly, and has willfully summoned persons upon the jury known to be prejudiced against defendant, with the view to cause him to be convicted. Article 662 provides that the two preceding articles do not apply when the jurors summoned are those who have been selected by jury commissioners. In such case no challenge to the array is allowed. Now, the challenge to the jurors in this case, though presented as a motion to quash, was simply a challenge to the array; and if article 662 means anything, it means what it says: that is, a challenge to the array can not be made to a jury selected by jury commissioners. See authorities cited in White's Ann. Code Crim. Proc., under art. 662. So that this article of the procedure, in connection with the articles prescribing the qualifications of the jury commissioners, must be construed in pari materia; in other words, the article of our code places a limitation on challenges to the array, and prescribes that it shall not be done where the jury have been selected by jury commissioners. And the former articles further suggest that the challenge to the array can only be made when prejudice is shown. Even if we apply this test, what prejudice is shown where one of the commissioners is interested in some civil suit not connected at all with the prosecution in this case. We are not now discussing a case where the jury commissioners are shown to have acted corruptly in the particular case in drawing a list of jurors to secure the conviction of defendant. It has been held that other causes may exist for the quashal of the array outside of the statute; but in all such cases violation of some constitutional guaranty or some injury must be shown. Carter v. State, 39 Tex.Crim. Rep.; Williams v. State, 20 Texas Crim. App., 359. We hold that the court did not err in refusing to entertain the motion.

We do not think the court committed any error in refusing to quash the indictment on the ground that there is any variance between the purport and tenor clauses of the indictment. We do not understand the indictment to allege the forgery of the note, but sets out the note, and then alleges the forgery of the indorsement.

Appellant objected to the introduction of the testimony of Stevens, who testified that sometime about the 5th of March he met defendant and a woman in New Orleans, when defendant introduced said party to him as his wife. This was excepted to on the ground that it was irrelevant, immaterial, and prejudicial, and was subsequent to defendant's marriage with Dollie Trimble. The first grounds of objection have been held not to present the question of the admissibility of testimony sufficiently for review. Hamblin v. State, 41 Tex.Crim. Rep.. The fact that the introduction took place subsequent to his marriage with Dollie Trimble, or his alleged marriage, would not suggest that this testimony was not competent. The State claimed throughout that the marriage with Dollie Trimble was a fraud, and did not constitute a legal marriage, so that the evidence regarding appellant's marriage to another woman was competent on this issue. Appellant proposed to prove by Lee Frisby that the signature of Dollie Trimble to the indorsement on said instrument did not compare with the signature on a deed which she had executed. The court excluded this testimony, because profert of the deed was not made for comparison. In this there was no error.

In bill of exceptions number 6 appellant brings in review the admissibility of certain evidence introduced before the jury for the comparison of signatures. The bill is substantially as follows: The State had the witness Dollie Trimble to write her name on a blank piece of paper three times before the court and jury; and offered her signature, in connection with the signature upon the note, in evidence before the jury, thereby securing a comparison of the signature as written upon the note and as written upon the blank piece of paper, which was offered as evidence in this case. To which defendant excepted upon the ground that the same had been written long after the signature was written upon the back of the note and under different circumstances, and was written with a stub pen, when the signature on the back of the note appeared to have been with a sharp-pointed pen; and that the manner of proving the handwriting of Dillie Trimble, in the way it was done, was illegal; and for the further reason that the signature made by her in the courtroom in the way and manner aforesaid should not have been introduced, for she being the main witness and the alleged injured party, she could therefore, on account of her hostility to defendant, disguise her handwriting and dissemble the same, if she saw proper to do so, and in that way showing the dissimilarity in her signature on the back of said note and as written upon the blank piece of paper. Which objections the court overruled, and permitted the evidence to go to the jury, and the defendant excepted. In support of his contention that the evidence thus affording the jury a comparison of the handwriting was inadmissible, appellant cites us to McGlasson v. State, 37 Texas Criminal Reports, 620. However, the State insists that said case is not in point and conclusive upon the question, inasmuch as the bill, on its face, does not make it appear that at the time Dollie Trimble wrote her signature she had the indorsement on the back of the note before her. It is true, the bill does not state in so many words that she had said indorsement before her at the time she made the signatures before the jury, and in that respect the cases as presented are not similar. But, it does occur to us, even if it be conceded that she had not seen the indorsement on the note at that time, yet, if she had really signed the indorsement thereon, she would, no doubt, have recalled how she signed the same. She certainly would remember how she made her ordinary signature. And, of course, the opportunity would be afforded her to dissemble and disguise her handwriting, — that is, not write in her ordinary method, — so that the danger of fabrication, upon which the cases seem to be based, would still be present. Evidence of the genuineness or want of genuineness by comparison of handwriting, to go to the jury, does not appear to be encouraged by the authorities, and is only permitted under proper safeguards. Such comparison is permitted between the alleged forged instrument and one offered in evidence, executed before there was any inducement to fabricate, and proved to be genuine; but the authorities hold that it is not competent, as was held in McGlasson's case, to have the witness make her signature before the jury for the purpose of comparing same with the signature on the alleged forged instrument. We see no reason to change the rule laid down in said case, and we believe the bill here presented brings the question squarely under the doctrine laid down in McGlasson's case, and the authorities therein cited. In this particular case appellant's defense appears to have been twofold, to wit: (1) That he executed the indorsement on the instrument himself (though there is no positive proof of this), under authority of the prosecutrix; and (2) that prosecutrix herein executed the indorsement. And the admission of illegal testimony tending to support the evidence of prosecutrix and destroy the theory of appellant, to the effect that the indorsement was made by her, was calculated to injure and impair his rights before the jury.

Appellant objected to the charge as given by the court, particularly with reference to the alleged marriage of the prosecutrix with appellant, as bearing on the issue of appellant's authority to control the notes and transfer the same. We think the charge as given is correct, and was as liberal as appellant could ask, under the circumstances.

For the error indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.