30 Tex. Ct. App. 369 | Tex. App. | 1891
Appellant was convicted of murder in the first degree, and the jury assessed against him the death penalty.
After the. special venire had been exhausted, a list of twenty-four talesmen was tendered the appellant out of which to complete the jury; whereupon he objected to the list, because it had not been drawn by the jury commissioners, and because he had not had one day’s service of said list prior to the time he was to select the jury to try him. ' Neither objection has any merit in it.
When a special venire has been exhausted, and a jury has not been selected, “the court shall order the sheriff to summon any number of persons that it may deem advisable for the formation of the jury.” Willson’s Crim. Stats., sec. 2248; Weathersby v. The State, 29 Texas Ct. App., 278. A defendant is not entitled to service of a list of tales-men summoned. Johnson v. The State, 4 Texas Ct. App., 268; Drake v. The State, 5 Texas Ct. App., 649; Harris v. The State, 6 Texas Ct. App., 97; Gardenhire v. The State, Id., 147; Sharp v. The State, Id., 650; Richardson v. The State, 7 Texas Ct. App., 486.
Several bills of exception are found in the record, in which it is stated that the juror named therein was examined as to his conclusions touching the guilt or innocence of the appellant. The answers of the juror are also embodied in the bill. These bills all fail to state which party interposed the objection. They do not state the objection urged, and they do not show the ruling of the court on the objections, and
On the 17th day of June appellant was brought into court for the purpose of having counsel selected for his defense, and to make necessary preparations for his trial. He informed the court of his ability to employ counsel, and notified the court of his selection of J. P. Boyd, an attorney of the court, as such counsel. On the following day the said counsel caused all necessary process in the case to issue.
The case having been set for June 22, was called on the morning of that day for trial; whereupon the said counsel informed the court that, inasmuch as the defendant had not arranged for the payment of his fee, he did not consider himself employed in the case. The court thereupon appointed him to represent the defendant during the progress of the trial.
Said counsel then requested the court to postpone the case for an entire day. This request was granted, and at the same time the court requested counsel, if he could do so, to proceed with the trial at an early hour. Counsel assented to this request of the court, and fixed the hour of 2 o’ clock that evening for that purpose. Upon the arrival of that hour the ease was called for trial. The defendant announced “Hot ready,” and presented an application for a continuance. This was overruled, and counsel again demanded a postponement of the case for a full day. The basis for this demand was not stated in the bill of exceptions. The party had been arraigned on the 17th, and it is not stated that the venire had been served on the defendant.
The inference is that the request is based on article 511 of the Code of Criminal Procedure, wherein it is provided that counsel shall have at least one day to prepare for trial when appointed to defend a capital case. If this inference be correct, the bill manifests no error, because the counsel had been preparing the case since the 18th, and had fixed the hour himself for announcement in the case after demand of the entire day, and had thereby waived any further time. The bill does not state that counsel was unprepared to proceed with the trial of the cause. Ho injury is shown to have occurred to defendant in this matter. This statute is not mandatory, and is only intended to secure time for necessary preparation for an intelligent management of the case, to the end that the party being tried shall have a fair trial.
Twenty-two of the selected veniremen were not summoned by the sheriff, and their names were not embraced in the copy served on the defendant. Appellant requested that process issue to compel the attendance of these jurors, and that the trial be postponed until they could be brought into court.
The facts set out in the application for a continuance are shown by the evidence adduced on the trial to be untrue. This is manifest from the testimony of the defendant himself. When arrested, a few hours after and for the murder of his wife, appellant had blood stains on his clothing. With these blood stains was intermingled brain tissue. His account of the presence of those stains was that they were produced by blood from a wound on his head, received at the hands of a party who robbed him in Dallas a few days prior to his arrest for the murder of his wife. The stains were found on his coat, shirt, and hat. Testifying on the trial, he stated that these blood stains were caused by his nose bleeding, and from this source the drops fell upon his clothing, and produced the stains found on said clothing and hat. He did not attempt to account for the presence of the brain tissue in the blood spots.
The evidence shows that the unfortunate woman was sleeping at the time she was murdered, and never moved from her restful position when the fatal blow was inflicted upon her head. By her side was quietly sleeping her two-year-old child. On the window curtain, walls of the room, floor, and ceiling were found spots of blood, mingled with the brains of the murdered woman. She had retired for the night, was evidently quietly sleeping, when the fatal blow descended upon her head and crushed it. The iron bar used by the assassin would weigh about five or six pounds.
While the facts are circumstantial, still they are cogent, and leave no doubt of the guilt of the defendant, and point with indubitable certainty to him as the perpetrator of the awful crime.
The charge is a fair and correct embodiment of the law applicable to the facts adduced. We find no error in the record, and the judgment is affirmed.
Affirmed.
White, P. J., absent.
