Carrasco v. State

Appellant is condemned to suffer death for the offense of murder.

A recital of the evidence is deemed unnecessary. Suffice it to say that it is sufficient to support the verdict.

From Bill of Exceptions No. 4, which is signed by the trial judge without qualification, the following facts are made to appear: On the first day of the trial, W. P. Clapp, a member of the special venire, was examined by the court and found to be a qualified juror. He was thereafter examined at length by both the State and the defendant and accepted by both parties. The juror was then sworn individually by the court to sit as a juror to try the case. He was instructed by the court concerning his conduct while on the jury and delivered to the sheriff to remain in his custody during the selection of the other members of the jury. Some twenty-four hours later, before the jury was completed, but after nine jurors including Clapp, had been selected and sworn and thus impaneled to try the case, the district attorney stated to the court that he desired to make further examination of the juror Clapp, stating at the time that he was informed that Clapp had not truthfully answered some of the questions propounded on his voir dire. This examination was permitted over the objection of the appellant and many questions were propounded to the juror by the district attorney to which he made answers. The bill does not reveal whether they were in conflict with any previous answers given by him; nor, so far as is perceived, did the examination develop any disqualifying fact against the juror. At the conclusion of the examination, the court, against the protest of the appellant, permitted the State to exercise a peremptory challenge of the juror and thereupon excuse him from the jury. The court then proceeded with the selection of the other jurors until the jury of twelve had been completed. When juror Clapp was sworn to try the case, he became impaneled as a member of the jury, and the court was without power, without the consent of the accused, to dismiss him from the jury and select another in his stead. This was decided by this court in Hill v. State, 10 Texas Crim. App. 618; Wade v. State, 12 Texas Crim. App. 369; Ellison v. State, 12 Texas Crim. App. 580; Sterling v. State, 15 Texas Crim. App. 256. In Sterling's case, supra, in which the penalty assessed was confinement in the penitentiary for five years, the appeal was based upon the unauthorized discharge of one of the jurors after he had been impaneled. After six jurors were impaneled, one of them learning that his family was ill, the court, with the consent of counsel for the accused and in the presence of the accused but without his express consent, discharged the juror, selected another in his stead, and proceeded with the trial. The case was decided in the year 1883. From the language of Judge Willson in reversing the case, we quote:

"It has been settled by the decisions of this court that when a juror has been sworn in a capital case he is impaneled, and must remain upon the jury to the termination of the trial. The court has no power to excuse a juror impaneled in a felony case. In case of sickness or accident rendering it impracticable to proceed with the trial of the case before the jury as then constituted, the only course the court can take is to discharge the jury and to proceed to form another."

In the recent case of Crow v. State, decided in 1921, and reported in 89 Tex.Crim. Rep., practically the same question here presented was before the court. During the selection of the jury in the Crow case, supra, Harper, a negro, was accepted by both the State and the accused. He was the third juror selected and impaneled. After his selection, three other men were selected and sworn. Harper was excused from the jury with the consent of counsel for both the State and the appellant. With those remaining and others impaneled, a jury of twelve was completed and a verdict of conviction rendered. This court held that the discharge of Harper without the express consent of the accused was fatal to the conviction, citing many cases. In the opinion are cited cases announcing that if after the impanelment of the jury, and in a capital case, after the selection and swearing of the members of the jury, sickness or some compelling cause renders it impracticable to proceed with the trial before the jury as then constituted, the only course open to the court is to discharge the jury and to proceed to form another. This course was followed in the case of Steen v. State, 92 Tex.Crim. Rep., in which the conviction was upheld. In that case a disqualified juror was one of the six who had been impaneled. Upon discovering his disqualification, the appellant declined to make any agreement touching the procedure to be pursued. The court discharged the six men and continued the case for the term. At the succeeding term the appellant was convicted. He then questioned the soundness of the ruling of the court in discharging the six jurors under the circumstances mentioned by way of a plea of former jeopardy. This court upheld the conviction, stating in substance that the circumstances warranted the trial court in discharging the six jurors impaneled to the end that another jury might be selected to try the accused. Without elaboration, we refer to the precedents mentioned and to others found in the opinions cited, and feel constrained to hold that in eliminating the juror Clapp from the jury after he had been sworn to try the case and in selecting another juror in his stead, all against the appellant's protest, the learned trial judge fell into error which renders it necessary to order a reversal of the judgment. This is accordingly done.

ON MOTION FOR REHEARING.