Rogers v. State

Appellant is under conviction for rape by having intercourse with a female under the age of consent. Punishment is five years in the penitentiary.

The court overruled a challenge to veniremen Low based upon the ground that the proposed juror was related to the injured female within the third degree. Subd. 10, Art. 616, C. C. P. Appellant then challenged Low peremptorily. The bill complaining of this matter is signed by the trial judge with the explanation that when the jury was completed appellant still had four unused challenges. Error in overruling a challenge for cause will not be reviewed unless accused exhausted his peremptory challenges and thereafter an objectionable juror was forced upon him. This rule was announced in 1857 in Burrell v. State, 18 Tex. 713 (Supreme Court), in an opinion by Judge Wheeler. It has been consistently followed. Gomez v. State, 75 Tex.Crim. Rep.;170 S.W. 711. (For many collated cases see Notes under Art. 614, C. C. P., Vernon's Ann. C. C. P., Vol. 2.)

J. V. Edgar served as a juror. Upon his voir dire examination he answered that he was not related either by blood or marriage to Ollie Veach, the alleged injured female. It was shown that neither appellant nor his attorney knew that such relationship did exist at the time the juror was accepted, and did not ascertain the fact until after appellant's original motion for new trial had been filed, whereupon the matter was presented in an amended motion. It is further shown that no negligence can be attributed to appellant or his counsel for not having discovered the relationship sooner. It appeared upon a hearing of the amended motion that Edgar's wife (who was still living) and the father of prosecutrix were cousins, being children of sisters. Upon the hearing Mr. Edgar testified that at the time he was taken as a juror and answered that he was not related to prosecutrix that he knew nothing of his wife being related to her and had heard of it for the first time on that morning (the day of the hearing of the motion), after receiving a telephone message in which he learned of appellant's contention, and made inquiry of his wife, and then for the first time learned of her distant relationship to prosecutrix. He did not know the father of prosecutrix and had never seen him until the day of trial. In Powers v. State, 27 Tex.Crim. App. 700, and Page v. State, 22 Tex.Crim. App. 551, the question of a juror's relationship was considered and there held to be ground for reversal, but in neither of those cases, nor in any other from our own court to which our attention has been called, did the question arise as to the juror's ignorance of the relationship. Investigation discloses a lack of harmony in the decisions from other states upon this point. See Corpus Juris, Vol. 35, Sec. 331, and authorities in Notes 2 and 3 thereunder; Ruling Case Law, Vol. 16, Sec. 103, p. 287; State v. Congdon, 14 Barb. I. 458; Tegarden Admr. v. Phillips, 14 Ind. App.Ct. 27; Travis v. Commonwealth, 106 Penn. 597; Salisbury v. McClasky, 33 Sup.Ct. N.Y. (26 Hun), 262; Hodges v. Bales,102 Ind. 494; Jewell v. Jewell, 84 Me. 304; 18 L. R. A. 473; Ledford v. State, 75 Ga. 856; McElhannon v. State, 99 Ga. 672; Northcutt v. Juett, 36 S.W. 179 (Ky.); State v. Harris, 69 W. Va. 244; 71 S. S. 609; 50 L. R. A. (N. S.) 933.

It must be borne in mind that our Constitution (Art. 5, Sec. 11) and Statutes (R. C. S., Art 15; C. C. P., Art. 552) absolutely disqualifies a judge who is related within the third degree to parties involved from presiding at the trial. It is a disqualification that cannot be waived, hence is operative even though the judge is ignorant of the relationship (Duncan v. State, 103 Tex.Crim. Rep.; 280 S.W. 216), whereas the relationship of a juror within the third degree is not a disqualification, but furnishes ground for challenge only. Art. 616, C. C. P., Subd. 10. Where there is no waiver of the challenge and no lack of diligence in discovering the existence of a ground for challenge to a particular juror who is not absolutely disqualified, it appears to have been generally held in this state that service upon the jury of such a one will not be ground for new trial unless probable injury to accused be shown. Leeper v. State, 29 Tex.Crim. App. 63; 14 S.W. 398; Martinez v. State (Tex.Crim. Rep.), 57 S.W. 838. (For other authorities see Note 53, Art. 616, Vernon's C. C. P., Vol. 2, p. 52.)

We think the showing of injury is entirely lacking in the present instance. No social relations are shown to have existed between the Veach family and the Edgar family from which the juror's knowledge of the relationship might be inferred. It is not claimed that he was active as a juror in behalf of the state from which any bias in favor of prosecutrix could be deduced. Eleven other jurors whose fairness is in no wise assailed reach the same conclusion as did Edgar. So pertinent seems the remarks of the Supreme Court of Pennsylvania in Traviss v. Commonwealth, 106 Penn. 597, upon the question now before us that we quote:

"* * * It appears one of the jurors by whom the verdict was rendered was related to the person who is alleged in the indictment to have been murdered, and the fact of such relationship was not known to the prisoner or his counsel until after rendition of the verdict. While it was shown to the satisfaction of the court below that the juror's mother and the mother of the murdered woman were cousins, and the fact was unknown to the prisoner or his counsel at the time of trial, it was shown with equal clearness that the juror had never seen the murdered woman or heard of her except in connection with the alleged murder, and was absolutely ignorant of any relationship until several days after the verdict was rendered. If the fact of relationship had been known and brought to the attention of the court before the juror was sworn, he doubtless would have been excused or successfully challenged for cause; but it was unknown to the court as well as the counsel on both sides, and the juror, after being examined in the usual manner, was accepted and sworn. The time to challenge is before the juror is sworn; if not exercised then, the right is waived. That waiver may be relieved against when the party affected has been intentionally misled or deceived by the juror or the opposite party; but it is not even pretended there was anything of the kind in this case. Neither the fairness nor the impartiality of the verdict is assailed on any ground connected with the relationship of the juror to the murdered woman. It is not and cannot be pretended that he or any of his fellows were in any manner influenced thereby. As the learned president of the court below well remarked, 'His judgment could not have been affected, even insensibly, by a circumstance of which he had not the slightest knowledge.' The newly discovered relationship was, therefore, no reason for setting aside the verdict."

The sufficiency of the evidence is questioned. We have thought it unnecessary to set it out in detail. It is one of those cases where the jury might have reached a conclusion favorable to appellant had they accepted his evidence and that of his witnesses. On the other hand, the state's evidence makes out a case. For us to reverse it would be necessary to discard the evidence which the jury accepted. This we would be unauthorized to do under the circumstances.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.