Carter v. State

The State has made a motion for rehearing, and contends that the court is in error in the original opinion, in regard to the formation of the jury which tried appellant. We held that the jurors Foster, Barlow and Floeck were not qualified jurors because they had not paid their poll tax; and we further held that inasmuch as appellant was forced to challenge these jurors, and so exhausted his peremptory challenges, the court erred in forcing the juror McNeal on appellant, on his objection urged to said juror. On the first proposition we adhere to our original holding. Our attention was not specially drawn to the shape in which this bill presented the question as to the juror McNeal. Appellant assigned no cause or objection as to this juror; simply objected to him. So far as this record is concerned, as shown by this bill, McNeal was a qualified juror and no fact or circumstance was shown, as to him, which suggested that he was not absolutely fair and impartial. In the motion for rehearing our attention is drawn to the fact that appellant simply objected to this juror without stating any ground of objection or any circumstance which rendered him an unfair or partial juror; and a long line of authorities is cited in support of the proposition, beginning with Loggins' case, 12 Texas Crim. App., 65, and coming down to the present time, to the effect that, before a case will be reversed because of some improper action of the court in overruling a challenge to some particular juror, it must be shown appellant exhausted his challenges, and that some objectionable juror was thereafter forced upon defendant. In Hudson's case 28 Texas Crim. App., 323, an objectionable juror was said to be one against whom some cause for challenge exists, such as would likely effect his competency, or his impartiality in the trial; and these authorities are reconcilable with Keaton v. State, 40 Tex.Crim. Rep., for there at least three jurors who had formed opinions, and as to whom it was proposed to prove the opinions so formed were against appellant, sat in the case over his objection. This is what we understand to be meant by an objectionable juror; that is, one against whom some ground or cause, such as the formation of opinion, or some prejudice, which might be ground of challenge, and would tend to show that the juror was not absolutely fair and impartial. But in this particular case no such ground was assigned. The juror was merely objected to. Upon such showing we hold, in accordance with the unbroken line of authority, that the court did not commit any error in the formation of said jury, and in refusing to stand the juror McNeal aside, no ground of objection being urged as to him which suggested that he was not a fair and impartial juror. We did not discuss this question before, but, as stated, our attention was directed simply to the qualifications of the jurors on account of their failure to pay the poll tax.

The State further claims that this court was in error in intimating, in the original opinion; that the court had erred in not permitting him to prove by the prosecutrix on cross-examination that she was employed by her father to assist in selling beer in his store, where disorderly characters, men and lewd women, gathered to drink beer at night, and to engage in lewd and disorderly conduct; and that the prosecutrix associated with them and drank beer with them and waited on them in the wineroom, associating with them on terms of equality. The State calls our attention to the bill of exceptions, and how this question was presented. We agree with this contention; that is, the bill does not show what the answer of the witness would have been. It merely states that defendant stated the object of the testimony was to show certain facts stated above, and for the purpose of attacking her credibility as a witness. A bill of exceptions should show definitely what the answer of the witness would have been. Duffey v. State, 55 S.W. Rep., 176. Appellant says that the object and purpose of this testimony was to attack her credibility; that is, to impeach her. While as stated in the original opinion, it may be permissible to show in the discretion of the court, the surroundings and environments of a witness, as her occupation, etc., yet if these were not matters that would go to her credibility as showing that she was plying some vocation that was immoral or against the law, involving moral turpitude, the exclusion of testimony short of this would not afford reversible error. While the court might have admitted the testimony here complained of, if the bill had been in proper shape, still its exclusion would not be reversible error. The authorities on this point, as we are advised, go to the extent of holding that the witness may be asked on cross-examination if she is a common prostitute, but as to this the examination must stop and she can not be impeached or her answer introduced in the negative. The effect of this testimony, if it had been admitted, would have been merely to show that the father of prosecutrix kept the house where the beer was sold, and men and women, some of bad character, gathered there to drink beer at night; and that she associated and drank beer with them in the wineroom. This was not testimony of a character to impeach or discredit her. It was her father's business, and he had a right to command her services. As stated, even if the bill had properly presented the question, there was no reversible error in rejecting it.

There are no other questions presented in the record that require discussion. In accordance with the views above expressed, the motion for rehearing is granted, and the judgment is affirmed.

Motion granted; affirmed.