257 S.W. 1097 | Tex. Crim. App. | 1924
The offense is murder; punishment fixed at confinement in the penitentiary for a period of 10 years.
In selecting the jury appellant sought to inquire of the veniremen on their voir dire whether they belonged to the organization known as the Ku Klux Klan. Upon objection by the state, appellant’s counsel stated, among other things, that it was highly important to the appellant that he ascertain
“As related to a peremptory challenge, a juror is ‘objectionable’ whom, the accused on triaí, desiring to eliminate, makes known his wish in a timely and orderly ■ manner. A peremptory challenge is, in our statute, defined as ‘a challenge made to á juror without assigning any reason therefor.’ Code of Grim. Proc. art. 609. It is the privilege of accused to exclude from jury service one who, in his judgment, is unacceptable- to him. Thompson on Trials, vol. 1, § 43. In conferring it the law gives effect to the natural impulse to eliminate from the jury list not only persons who are rendered incompetent for some of the disqualifying causes named in the statute but persons who, by reason of politics, religion, environment, association, or appearance, or by reason of the want of information with reference to them, the accused may object to -their service upon the jury to which the disposition of his life or liberty is submitted.”
The exact question was before the court in the case of Reich v. State (Tex. Cr. App.) 251 S. W. 1073. In that case the court prevented the appellant from ascertaining from the veniremen whether they were members of the Ku Klux Elan. The appellant excepted to this upon the ground that the information desired was necessary in the exercise of his peremptory challenges. Holding that inquiry to be a proper one, this court used the following language:
“Under the practice in this state, the right to interrogate veniremen on their voir dire is not open to question. This may be done in order to elicit facts that will enable them to exercise their right of peremptory challenge in an intelligent manner. This must, of course, within reasonable limits, be determined under the facts of the particular case by the trial judge. His discretion in the matter, however, has limitations, and, when abused, will be corrected upon appeal. Cyc. vol. 24, p. 338, 3d subdivision of the text, notes 23, 24; H. & T. C. Ry. Co. v. Terrell, 69 Tex. 650, 7 S. W. 670; Barnes v. State (Tex. Cr. App.) 88 S. W. 805; Patrick v. State, 45 Tex. Cr. R. 587, 78 S. W. 947.
“Upon the facts revealed by the bill of exceptions in the instant case it is conceived that the inquiry proposed was a 'proper one. The information which was called for wás certainly calculated to have enabled appellant to intelligently exercise his peremptory challenges! We fail to discern anything in its1 nature that would give the court the discretion to deny the privilege of propounding the questions. Illustrative cases are numerous. See Houston v. State, 83 Tex. Cr. R. 190, 202 S. W. 84; De Arman v. State, 80 Tex. Cr. R. 147, 189 S. W. 145; Hibbitt v. State, 90 Tex. Cr. R. 527, 236 S. W. 739; Crow v. State, 89 Tex. Cr. R. 142, 230 S. W. 148; Stagner v. State, 9 Tex. App. 440; Lavin v. State, 69 Ill. 303; State v. Mifier (Mo.) 207 S. W. 797; State v. Smith, 57 Mont. 563, 190 Pac. 107; Barnes v. State, 74 Tex. Cr. R. 501, 168 S. W. 858.”
See, also, Benson v. State (Tex. Cr. App.) 254 S. W. 793.
There is nothing to distinguish the present case or to exempt it from the principle applied in the cases from which the excerpts have been taken. The inquiry that the court proposed, namely, that the juror might be asked whether he belonged to any organization which would influence him would suffice to elicit his conclusion that he would not be influenced, but this would not be an adequate substitution for the information which the accused desired, in order that he might exercise the privilege given him by statute of excluding the veniremen from the jury.
Many other questions are presented, but consideration of them is pretermitted on account of the stress of business now before us, and because the questions will not likely arise in the same form upon another trial.
The judgment is reversed, and the cause remanded.