127 S.W. 543 | Tex. Crim. App. | 1910
This is an appeal from a conviction for murder in the first degree with a penalty of life imprisonment in the penitentiary. At the January term of the District Court of Matagorda County a bill of indictment was returned into the District Court charging appellant with the murder of Theodore Bundick. He was brought to trial, which resulted in his conviction on January 20, 1910.
Motion for new trial was made and this motion for new trial was acted upon on the 25th day of January, 1910. Sentence was pronounced on the same day. When the motion for new trial was overruled appellant excepted and gave notice of appeal to the Court of Criminal Appeals and obtained an order allowing him thirty days in which to file statement of the facts and bills of exceptions. On February 5, 1910, and during the term of the court at which the conviction was had, the appellant filed a supplemental motion for new trial setting up that he had just been advised that Wiley Draughan, one of the jurors composing the jury that tried him, was an ex-convict and that he had never been pardoned and that said trial was illegal and void because of the absolute disqualification of said Draughan, and that the defendant had thereby been deprived of a trial by *10
a legal jury as provided by law; and that these facts were unknown to appellant and his counsel prior to the return of the verdict in said cause. The court below granted leave to file this supplemental motion and the same was considered by the court below and was in all things refused and overruled, and from this order overruling the supplemental motion the appellant excepted and gave notice of appeal to the Court of Criminal Appeals. The proof on this motion established beyond controversy that said juror was an ex-convict and had not been pardoned, having been convicted of a felony; and second, that the appellant nor his counsel were advised of this fact before the return of the verdict in the case and that said motion was made as soon as this fact was discovered. In view of the fact that one of the jurors rendering the verdict in this case against appellant had been convicted of a felony, and that he had never been pardoned and that his citizenship had never been restored, and following the rule laid down in Rice v. State, 52 Tex.Crim. Rep.; Greer v. State, 14 Texas Crim. App., 179, and Easterwood v. State,
There are other questions raised in the record that are not necessary to mention. Because the appellant was tried by a jury not legally constituted under the provisions of the law, the case will be reversed and the cause remanded and it is accordingly so ordered.
Reversed and remanded.