Lowe v. State , 88 Tex. Crim. 316 ( 1920 )

Appellant was convicted of the murder of one Tullos, in the District Court of Wilson County, and his punishment fixed at confinement in the penitentiary for life. The case originated in Atascosa County, and was sent to Wilson County upon change of venue. It is urged that the trial court should have discharged juror Darelik of the court's own motion, and that his failure to do so was error. From the record, it appears that when the work of impaneling the jury was begun, this was the first juror to be examined, and that he stated in substance that from reading the papers and hearing talk upon the streets, he had come to a conclusion about the case that would influence his verdict. He does not appear to have been asked and answered the question as to whether he could try the case under the law and evidence, and lay aside such opinion. The understanding of the English language by said juror, and of legal terms, was not made clear by the examination given him. After the juror stated to the court that he had an opinion which he thought would influence his verdict, the judge asked appellant's counsel if they desired to challenge the juror for cause, stating that if they did so desire, he would sustain their challenge. Appellant's attorney declined to challenge said juror for cause, and when the State accepted him, appellant also accepted him; and he was duly sworn, and sat as a juror. No bill of exceptions was taken or reserved then by appellant to the taking of said juror. That the juror was objectionable was first disclosed in appellant's motion for a new trial. A bill of exceptions was taken to the court's refusal to grant a new trial upon this ground. In his explanation affixed to said bill, the trial court states that appellant declined to challenge the juror for cause, and further, that appellant did not use a peremptory challenge upon him, and the jury was obtained before appellant had exhausted his peremptory challenges. We might content ourselves with saying that it is too late after the verdict, to complain of errors committed in the impaneling or organization of the jury. Jones v. State,37 Tex. Crim. 433; Moore v. State, 55 Tex.Crim. Rep.; Ellington v. State, 63 Tex.Crim. Rep.; Kinch v. State,70 Tex. Crim. 419, 156 S.W. Rep., 648. As said by Judge HURT in Caldwell v. State, 12 Texas Crim. App., 316: "Will this court reverse a judgment for these irregularities, when the defendant made no objection at the time, taking his chance of being acquitted by this jury thus sworn, and holding in reserve this matter to be used in his motion for new trial, and, on failure then, to be used in this court as ground for reversal of the judgment? We think not." As said by Judge DAVIDSON, in the Kinch case, supra, "Appellant went to trial without objection, accepting the jury, reserving no exception. There was no challenge to the array, nor was there an exception reserved to any juror who sat upon the trial . . . If appellant had objected to these jurors, or to the array before the selection of the jury, his case would have presented a different proposition. We, therefore, hold that even had the matter been presented by bill of exceptions, we could not reverse, inasmuch as appellant accepted the jury without objection, and only suggests it after trial, in the agreed statement of facts." If the defendant accepts a juror after learning that he has an opinion, he cannot afterward complain that the juror was not fair and impartial. Kirk v. State, 37 S.W. Rep., 440; Aud et al. v. State, 36 Tex.Crim. Rep.; Armstrong v. State,34 Tex. Crim. 248; Hughes v. State, 60 S.W. Rep., 565; Tinker v. State, 58 Tex.Crim. Rep.; Powers v. State, 69 Tex. Crim. 494, 154 S.W. Rep., 1020.

All other grounds of challenge for cause may be waived, except that the proposed juror has been convicted of theft or felony, or that he is under indictment for theft or felony; that he is insane, or so physically defective as to render him unfit. Art. 695, Vernon's C.C.P., Greer v. State, 14 Texas Crim. App., 179; Poole v. State, 45 Tex.Crim. Rep..

Appellant cites authorities in support of his contention, but an examination of each of them discloses that in none does there appear a state of case at all similar to the one before us. In the Stagner case, 9 Texas Crim. App., 450, appellant exhausted all his peremptory challenges, and was forced to take as jurors certain persons who had opinions which they stated would require evidence to change, to each of whom he made challenge for cause, which was overruled. All the expressions used by the court in the Stagner case are based on and must be construed in the light of these facts; nor are they to be construed as imposing any duty on the court of his own motion to discharge a juror whose examination shows him subject to challenge for cause, under Subdivision 13, of Article 837, C.C.P., unless one of the parties sees fit to make such challenge. For us to hold otherwise would be for us to constitute of ourselves the law-making body, and to add to and change the terms of Article 695, wherein it is stated that no juror shall be impanelled when it appears that he is subject to either the third, fourth or fifth cause of challenge laid in Article 636, although both parties may consent. It would be for us to so change this article as to make it also include the thirteenth cause for challenge. We do not understand this to be our province. Specific statutory mention of these three grounds excludes those not so named.

The Spear case, 16 Texas Crim. App., 113, is also cited, but in that case a challenge for cause was sustained, and all in that opinion which is authoritative relates to the correctness of the ruling of the trial court in upholding a challenge for cause. The Steagald case, 22 Texas Crim. App., 488, also cited, is against appellant's contention. The court there upheld the action of the trial court in overruling the appellant's challenge for cause to a juror, and aptly said: "Moreover, it is not shown that defendant had exhausted his peremptory challenges, and unless that is shown, he has no right to complain. Loggins v. State, 12 Texas Crim. App., 65; Bean v. State, 17 Texas Crim. App., 60; Heskew v. State, 17 Texas Crim. App., 161."

In the Suit case, 30 Texas Crim. App., 323, also cited, this Court held the action of the trial court correct in overruling the challenge for cause. In the Randle case, also cited,34 Tex. Crim. 43, the only question before the court remotely related, was the question of a change of venue, and the discussion of said question, as relating to the one before us, is merely argumentative. In the Parker case, 45 Tex. Crim. 336, also cited, the question involved was the correctness of the action of the trial court in overruling a challenge for cause. No case is cited, nor do we know of any, in which, on a state of facts similar to the one before us, it is held to be the duty of the trial court to grant a new trial where a juror was accepted by the accused, with full knowledge of the matter set up in the motion for new trial.

Complaint was also made in appellant's motion for new trial, that the court failed to limit in his charge to the jury, the testimony offered by appellant to impeach one Will Rainey, who was a State witness. We do not understand the rule to be that such testimony should be limited. Givens v. State, 35 Tex. Crim. 564; Ogle v. State, 58 S.W. Rep., 1004; Thompson v. State, 55 Tex.Crim. Rep.; Ellis v. State, 69 Tex. Crim. 468, 1012. If such limitation were proper, the failure of the court to so state in his main charge was not excepted to, nor was any special charge asked presenting the issue, and in such case no error would appear. Art. 743 Vernon's C.C.P., Bedford v. State, 75 Tex.Crim. Rep., 170 S.W. Rep., 727; Hawkins v. State, 74 Tex.Crim. Rep., 168 S.W. Rep., 93; Burge v. State, 73 Tex.Crim. Rep., 167 S.W. Rep., 63; Roberts v. State, 74 Tex.Crim. Rep., 168 S.W. Rep., 100; Johns v. State, 76 Tex.Crim. Rep., 174 S.W. Rep., 610.

The only case cited by appellant, supporting his contention in this regard, is Bell v. State, 17 Texas Crim. App. We observe that the law requiring exceptions taken to the charge, or special charges requested, has been changed since the rendition of this decision.

Misconduct of the jury is set up in the motion for new trial. Aside from the general matters averred, it is stated that two jurors were communicated with while on the jury by persons interested in securing a conviction, and that the communications were injurious to appellant. The jurors named were Myers and Clark. Subdivision 7, of Article 837, Vernon's C.C.P., states that a new trial shall be granted when the jury, after retirement, have received other testimony; or where a juror has conversed with any person in regard to the case, etc. Our authorities hold that it must appear that there was a communication, that it related to the case, and that no injury could or did follow. See authorities collated, page 791, Vernon's C.C.P., Sec. 598, Branch's Ann. Penal Code. Upon the hearing of the facts as to this misconduct when the motion for new trial was presented, it was testified by Spencer McKenzie that as the jury were passing him at one time he remarked to juror Myers, "Why don't you fellows get a shave," and that either at that time, or on another occasion, he said to juror Clark, "Are you coming out to the lodge tonight?" The juror Myers testified that he heard McKenzie's remark, but juror Clark testified that he did not. This comprehends the matter. Neither remark referred to the case. Nothing appears which indicates error or abuse of the trial court's discretion in overruling this part of the motion for new trial. Communications with the jury, except within statutory limitation, are improper, and should not be permitted, but to constitute error, they must be brought within some forbiddance of the statute.

Appellant's bill of exceptions No. 5 states that he objected to the State asking, and to his being required to answer while a witness, the following question: "I will ask you if it is not true that it was discussed in that conversation (having reference to a conversation inquired about by the State) that you had been gambling and had repeatedly given checks and turned them down and when that was found out, you got mad at them too." It is stated as a part of said bill that appellant was also compelled to answer other questions on the same subject, but the latter questions are not set out, and cannot, therefore, be considered by us. What answer, if any, appellant made to the foregoing question, is not stated, nor is there presented the connection or setting of said question, so that we may be informed and know that the objection is sound. If we understand the record, the State's theory of motive for the killing, was ill-feeling on the part of appellant toward one or both of the men killed by him, caused by certain gambling transactions and gambling debts owed by appellant. To support such theory, it might easily become material to show that appellant had been gambling, had given checks, and had them turned down, and in conversations relative thereto, had gotten "mad at them too." It is well settled that a bill must contain such showing as will enable us to see therefrom that the complaint is meritorious. Also, that the answer of the witness if complained of, must appear. Vernon's C.C.P., pp. 537-538; Lawson v. State, 50 S.W. Rep., 346; Ryan v. State,64 Tex. Crim. 628, 142 S.W. Rep., 878; Chapman v. State,37 Tex. Crim. 173; Ford v. State, 40 Tex.Crim. Rep.; Branch's Ann. Penal Code. Secs. 208, 209 and 210.

That an effect of such testimony would be to affect the character of the accused, is not sufficient objection if the evidence be otherwise admissible. In such case, if such be the probable or possible result of such testimony, appellant has the right to request a charge limiting the purpose for which same was admitted, but none was asked in the instant case.

It is also urged that there was a separation of the jury, and that this was erroneous. It was shown that after the jury were selected and sworn, and before arraignment, while leaving the courthouse at night, the juror Cox, understanding that the jury were directed to go down a certain stairway, went down same. Other men were also going down said stairway, whom he supposed to be jurors, but when he got to the foot of the stairs, he discovered that the other jurors were not with him. He asked a nearby man, who turned out to be the district attorney, where the jury was, and at once returned to the head of the stairs and rejoined them. No discussion of, or reference was made to the case. This was all that occurred, as shown by the testimony. This was no misconduct of the jury, nor was it such forbidden separation as is embraced in the terms of Article 745, Vernon's C.C.P. Latham v. State, 75 Tex.Crim. Rep., 172 S.W. Rep., 797; Guerrero v. State, 75 Tex.Crim. Rep., 171 S.W. Rep., 721; Webb v. State, 69 Tex.Crim. Rep., 154 S.W. Rep., 1013; Robinson v. State, 58 Tex.Crim. Rep.; Champ v. State, 32 Tex.Crim. Rep.; Jones v. State, 69 Tex. Crim. 447, 153 S.W. Rep., 897; Bailey v. State, 26 Texas Crim. App., 706.

Appellant's witness Burkett was asked, over objection, if it was not true that when before the grand jury testifying in regard to this transaction, he failed to mention certain matters now given in testimony by him. The answer of the witness is not given in the bill of exceptions, but from certain statements therein, we are led to believe that he stated that such question was not asked him when before the grand jury. A witness may be asked, as affecting his credibility, whether at other times and places, in narrating the occurence testified about, he gave testimony different from that now given. Nor would the fact that the attempted predicate was as to statements made before the grand jury, affect the admissibility of such question and its answer. A witness may be impeached by statements made, or omissions, relative to his testimony, before a grand jury. Vernon's C.C.P., p. 183, and cases cited; Clanton v. State, 13 Texas Crim. App., 153; Rippey v. State, 29 Texas Crim. App., 43; Sec. 177, Branch's Ann. Penal Code.

It is claimed by appellant that he was absent from the courtroom while the trial was in progress. The maker of the affidavit relative to this matter, appended to the motion for new trial, testified before the trial court upon the hearing of the motion for new trial, and his testimony fails to show that appellant so absented himself.

The bill of exceptions objecting to the testimony of the witness Despain, and certain parts of the testimony of appellant, has already been substantially disposed of in what we have said in reference to the bill relating to questions asked appellant concerning gambling transactions and debts. This bill of exceptions is very general, and does not set out the questions objected to, and their answers, but merely states generally that the court erred in allowing the State to prove by these witnesses that appellant gambled in July or August, and had so done for several years. For aught we know of the connection or circumstances, or are informed by the bill of exceptions, these matters may have been pertinent and material.

Appellant also has a bill of exceptions to the rejection of the testimony of his son, as to a statement made by appellant's wife, the mother of said witness, subsequent to the shooting. The trial court qualified this bill by saying that it was not shown how near in point of time the statement was to the time of the shooting, and further, that in his opinion, the statement made was but the opinion of the lady. We think the conclusions of the trial court fully justified in both respects.

The matter complained of in appellant's bill of exceptions No. 11 has already been substantially disposed of in what has been said above, relative to the testimony about gambling transactions and debts of appellant.

Appellant seems to have had a fair trial. No exceptions appear to have been taken to the charge as given. A number of special instructions were asked by appellant, and all given save one, and no complaint is made before this Court of the refusal of same. A jury was selected without exhausting the peremptory challenge of the appellant. We see no good that can come from an extensive statement of the facts of this tragedy. Appellant, with a Winchester rifle, shot and killed two unarmed men, upon the streets of the town of Jourdanton, Atascosa County, Texas. No claim is here made that the verdict was not fully supported by the testimony.

Finding no reversible error in the record, the judgment will be affirmed.

Affirmed.

ON REHEARING. January 5, 1921.