Charles v. State

Willson, J.

Defendant was convicted of murder in the second degree, and his punishment was assessed at fifty years confinement in the penitentiary.

Defendant moved to quash and set aside the special venire and return thereof for the reason that the entire venire of sixty men had not been summoned, and because no sufficient diligence was shown in the sheriff’s return why the jurors mentioned in the motion to quash were not summoned. Article 613 of the Code of Criminal Procedure provides: “The sheriff or other officer

executing the writ shall summon the persons whose names are upon the lists attached to the writ, which summons shall be made verbally upon the jurors in person;” and Article 614 provides for the officer’s return as follows: “The officer executing the writ shall return the same promptly on or before the time it is made returnable. The return shall state the names of those who have been summoned; and if any of those whose names are upon the list have not been summoned, the return shall state the diligence that has been used to summon them, and the cause of the failure to summon them.”

In the case before us thirty-six of the sixty persons named in the venire were summoned, leaving twenty-four not summoned. Fourteen of those not summoned are shown to have been absent from the county at the time. One was shown to have been dead. Some of the remaining nine, although residing in the county, could not be found after due diligence used, and some of them resided at such great distances from the county site that they could not be served for want of time.

While we regard the articles of the code which we have quoted as wise provisions of law, and safeguards against that great evil popularly known as “stocked juries,” still we do not think a slight disregard of their provisions would be sufficient per se to warrant the setting aside of a verdict of conviction. It is the duty of the trial judge to see that these provisions are substantially observed, and he should, in all cases where they are applicable, be careful to enforce them with such strictness as to certainly accomplish their purpose, which is to secure an impartial jury for the trial of the cause. This court, in the absence of a showing to the contrary, will presume that the trial judge in this important matter has discharged his duty. If, however, a case should come before us wherein it was made to appear that this discretion confided by law to the trial judge had been abused, whereby the defendant had probably been injured in his rights, we would not hesitate to set aside the conviction and award him a new trial.

In this case it does not appear that the trial judge committed any error in overruling the motion to quash the venire, nor that any right of the defendant was prejudiced thereby. For aught that appears from the record the jury that tried the case was composed of men selected from the thirty-six summoned jurors. If so, the defendant certainly cannot complain that he was injured by the ruling of the court upon his motion. It is not shown that the defendant, by reason of the ruling of the court, was compelled to pass upon talesmen jurors, or to accept any objectionable juror, or in any other manner suffer injury by reason of the overruling of his motion. Furthermore, we think the return of the sheriff upon the venire shows good reason why fifteen of the jurors were not served, and, if the return as to the remaining nine not served be true, it is also sufficient as to them; and we must presume, in the absence of contradiction, that the officer made a truthful return.

It would have been more strictly in compliance with the law if the officer, instead of stating in his return that he had used due diligence to serve these jurors, had stated the facts which constituted the diligence, so as to enable the court to determine whether or not due diligence had in fact been used. In the manner in which the question is presented to us, we cannot say that the court erred in overruling the defendant’s motion to quash the venire, nor if we were to hold that this action of the court was error, would we be justified in further holding, upon the facts presented in the record, that it was that character of error which would vitiate the conviction.

As to the objection made to the sufficiency of the verdict, the same question was elaborately discussed and decisively determined by this court in Lopez v. The State, 2 Texas Court of Appeals, 204, in which a precisely similar verdict was held to be sufficient; and we approve and reaffirm that decision.

In response to the several assignments of error relating to the charge of the court, and the refusal of the court to give special charges requested by defendant’s counsel, we will say that after careful examination we find no error in the charge of the court as given, nor in the refusal of the court to give the special charges requested. We think the charge of the court presented all the law applicable to the facts of the case, and presented it correctly. That portion of the charge relating to the drunkenness of the defendant at the time of the homicide was in accordance with the statute on that subject. (Acts Seventeenth Leg., chap. 14, p. 9.)

There was sufficient evidence, we think, to support the verdict. The judgment is affirmed.

Affirmed.

Opinion delivered March 22, 1883.