201 S.W. 172 | Tex. Crim. App. | 1918
This conviction was for murder.
When the indictment was returned on the 25th of October, 1917, appellant and the district attorney had an agreement to set the ease for the 7th of November, and the district attorney to reguest the drawing of a special venire. The district attorney went away, and in accordance with this agreement appellant’s counsel presented this matter to the court. The court asked appellant’s counsel if he would be ready for trial. 1-Ie indicated he thought he would not he ready; therefore the court refused the request. On the 29th of October, however, the court of his own motion, and it seems without the knowledge of appellant or his counsel, ordered the case set down for trial on the 7th of November and the drawing of a special venire, directing the manner and terms of such drawing. The bill of exceptions is quite lengthy, and all of the facts stated in the bill were agreed to by the district attorney and approved by the court. The substance of this bill shows as above indicated, and that the court directed the drawing of the regular jury for the third week of court, which begun on the 5th of November; this case being set for the 7th of that month. This consisted of 24 names. The court also directed the sheriff to select a sufficient number of jurors from the county at large to finish the number ordered, which was 48. The 48 then were to constitute the special venire. The 24 jurors for the third week of court, commencing on the 5th of November, were drawn from the box; the other 24 were not, and the sheriff filled out the special ve-nire list with those he summoned from the county at large. It is also shown that the jury for the first week of court, commencing the 22d of October, consisted of 36 jurors for the week; that they were impaneled for service but were discharged after one day’s service. The jurors for the second week, commencing on the 29th of October, consisted of 24 jurors; they were impaneled and served one day and were discharged. As before stated, the jurors for the third week, commencing the 5th of November, consisted of 24 jurors. These added together would make a total number of 84 regular jurors for the term. The names of none of these jurors were placed in the box to be drawn as special veniremen, except those of the third week. There is no question of the above-stated facts.
The application for a continuance is not discussed. It is not deemed necessary under the disposition of the ease.
There are quite a lot of criticisms of the court’s charge. We deem it unnecessary to go into an extended review of these matters. The charge is fairly well written. There may be some criticism of the charge on self-defense which seems to have some merit. To meet this appellant asked a special charge which, we think, should be given upon another trial, or the court’s charge changed so as to conform with the matter set out in the requested instruction. We deem it unnecessary to discuss it. It is of no particular value to any other case except the instant case in view of another trial, but in the record it is known as special charge No. 2 requested by appellant. The court refused it because he says it was covered by the main charge. We are of opinion there is enough difference in this charge and that given by the court to have justified, if not required, the court to give the special instruction.
The judgment is reversed, and the cause remanded.
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