*1 original opinion and will are stated The facts shown. upon. again or elaborated here stated rehearing is overruled. Opinion approved by the court. Curry
Louis Tom v. State. 19, 1952. 25,733. March Rehearing April Denied Judge Presiding. Hall, Hon. A. Robert Henderson, (on Ben Irwin & Irwin Robert Benavides C. Only), Dallas, appellant. Appeal all of Attorney, Potts and Pete Wade, S.
Henry District Charles Dallas, George Attorney, P. District White, Assistants Austin, Attorney, for the state. Blackburn, State’s *2 Judge. DAVIDSON, exhibiting, keeping unlawfully and for conviction is a This bank, gaming gaming, and with a table purpose of the for peniten- years’ in the confinement at two
punishment assessed tiary. non-capital criminal in try and cases the civil to Juries county County where county Dallas and district courts of —the by the furnished from and tried —are obtained case was Interchangeable Jury provided by jury panel, the as provision made for the S.) is (Art. R. C. wherein Law jury panel
drawing each week empaneling and jury the wheel. jury a provides of to for the selection Art. C. C. try ordinary felony follows: and reads as courts, or more “In counties three district attorney, upon or of judge, the demand of the defendant or his capital, counsel, names in a case not shall cause the the State’s general panel for service the available of all members the jurors receptacle placed a and well as in such case to in be shaken, judge names of a therefrom the said shall draw may jurors jury selected sufficient number of from which a be try written, in the order such and such names shall be drawn, jury jury list from the is to be selected try meaning article, criminal such case. the of this a Within a jurisdiction felony court with in shall considered cases district court.” Procedure, provides
Rule for selec- Rules of Civil the courts, a try tion of in and reads as a civil case said follows: governed providing
“In juries by for counties as to the laws interchangeable juries, placed jurors names shall be upon general panel they order in which are drawn wheel, assigned jurors from the service from shall be top thereof, needed, they in the order in which shall be general any returned to the after service such courts shall be enrolled at the of the list bottom respective return; provided, however, order of their any reached for any party judge upon demand of trial party, shall cause attorney for such jury, trial or of the general panel available the names of all the members placed case to be service as such therefrom shaken, judge draw shall and said well number sufficient cause, and names shall be may try such such be selected to from which the list order on transcribed in the drawn try case.” is to be selected S., it R. C. as 223, above, Art. Rule as same rule-making conferring power prior repeal act existed Supreme Court this State. in civil cases (Art. 2101, S.), Interchangeable R. C. Art. Jury Law *3 223), C. were (now Rule and Art. C. R. C. S. codifying codifying the civil commission written language thereof does not for the criminal statutes legislature. appear any prior act of the organi- having rules, reference to These statutes and juries try criminal common zation of source, civil and cases together necessity in order must of be construed meaning. their determine County judicially there know in Dallas seven are having jurisdiction, and
district both civil and criminal courts Regular (Chap. two criminal district Acts Session courts Legislature together county 1951), 52nd with courts-at-law having jurisdiction. criminal civil and along cases, ordinary felony
This with other was set Monday way trial of a for on certain week. There was no determining in advance which of would come trial cases day. probability, In all to conserve time the trial court jury panel ordered clerk of the court to call thirty-two jury for veniremen from would be selected any in the case that went to trial —all this in advance of an- ready nouncement of for trial cases. trial, case was called and after motion for overruled, ready
continuance was announcements of trial jury thirty-two were entered. The list of veniremen from which given appellant. was to be selected was then There- presented following upon, he court the motion: Curry, Tom styled comes Louis Defendant “Now above and files and numbered cause this his for this Honorable judge of all to cause the names members for the Central placed for service as in this cause available to be shaken, receptacle and in a well and to draw therefrom the sufficient number of may which a try this and further be selected herein that the said Judge or Honorable trial issue cause to be issued an order to receptacle the effect that the names selected from said shall written in the order drawn from said list.” overruled, exception reserved,
The motion was and the tried this case was selected from said list. overruling motion, In the trial court made the follow- ing order, viz.:
“This Motion was jury panel to the Court after the was in the Court room at (June one P. M. date 11th, 1951) the case called at nine A. M. this morn- ing, and no was made the defendant. The County, Texas, courts in already Dallas majority have used a jury room, from the central thus this motion comes too late to be acted on.” exception presenting bill of this matter was further
qualified by as follows: “ ‘The Court certifies that had the Motion of the Defendant *4 timely presented, been granted, it would have been and the panel members would have thirty-two been shaken and names drawn However, therefrom. ruling as will be seen Motion, from the Court’s it was impossibility the time pre- that said Motion was ” sented.’ It is that the appellant’s trial court construed mo- request tion as a thirty-two have the names of the venire- men drawn from the entire list of the panel. There nothing indicating in the record before us that given intended that fact, other construction be to his motion. In argued he briefed and case in this court that proposition.
A similar contention heretofore has to this
241 that, operating held in under the and we have counties court interchangeable jury law, requisite it was names put ain all the men summoned for service be given properly order to draw a for the in a case. in State, 1100; 648, 2d v. 126 Tex. Cr. R. 72 Hoebrecht S. W. Wright State, 511; 93, 117 Tex. R. 36 2d Arm- v. Cr. S. W. strong State, 171, v. 113 Tex. R. 2d 622. Cr. S. W. apparent, therefore, that, operating
It is in those counties jury wheel, term, jurors,” under the “available service as 626, as used in Art. refers to C. C. those veniremen sent given over from the room for case. It service follows that required the trial court was not here to have the thirty-two jury panel, veniremen drawn from the entire central refusing and his action was not error. P., provides among Art. things C. C. be- — — charge
fore the trial court jury, reads his to the the defendant or his counsel “shall have a reasonable time examine same present objections he shall writing, his thereto in distinctly specifying ground objection.” each
Appellant contends in this case he court denied a prepare reasonable time to and submit his ex- ceptions objections charge. to the court’s repeated holding has been length that the time accorded a trial court to an accused within which to prepare exceptions and file objections his to the court’s charge is a largely matter rests within the discretion of the trial court. His action in only the matter will be reviewed determining an abuse of that discretion has oc- whether Lilley State, curred. v. 100 Tex. 270; Cr.R. 273 S. W. State, Moore v. 140 Tex. 762; Cr. R. 146 S. 2dW. Ruther- State, ford v. 142 Tex. R. Cr. 2d S. W. exception presenting
The bill of this matter shows that evidence the case closed about p. m., five at which adjourned time the court day. the trial for The trial time, delivered charge preparation objections exceptions, his instructing *5 him following to morning. be court at nine o’clock the morning, On appear that did counsel not in court at appointed time by but contacted the clerk of telephone the court court to additional time accorded he that and asked exceptions drafting objections to and of his complete the and counsel charge. was refused additional time The court’s the case about with the proceed required was argument, morning. proceeding with Before ten o’clock asking for further time presented a written motion objections exceptions prepare his and within charge. refused. motion was court’s charge receipt motion, that counsel states after In the m., o’clock, from six two a. it over until he studied According morning. next m., called into court until a. charge admission, pos- then, in his he own counsel’s something thereon like twelve hours. worked session limiting counsel to such constrained conclude areWe unreasonable, More- time not under the statute. period of was present over, counsel did file and to the trial note that exceptions objections charge, court’s court his comprise pages typewritten transcript matter
five us. before agree are unable to with the he was prepare time
accorded a reasonable within which to and file his charge. exceptions objections to the court’s appearing, judgment reversible error is affirmed. No approved Opinion by the court.
ON MOTION FOR REHEARING.
MORRISON, Judge. counsel, argument, ques- able brief and has original portion opinion tioned of that the soundness of our said, which we “It is the trial court construed aas to have the names of the 32 jury panel.” veniremen drawn from the entire list of the central re-examining In conclusion, soundness of this we find following qualification Exception to Bill of No. 1: “The Court certifies when the defendant’s Motion to shake presented following the Court entered the order relative thereto: ‘This Motion was to the Court *6 one M. room o’clock P. the Court the was after called at nine 11th, 1951) been (June the this date de- morning, was made no such A. M. this Texas, already County, have in Dallas fendant. The other courts room, majority thus used of the a (Signed) A. late to acted on. Robert this motion comes to ” Hall, Judge.’ appellant apparent court made is thus known he considered motion one aimed at those as aimed the 32 men then room not as one interpretation in the of motion court room. an When appellant, was made made no known to the he move notify something meant than the court that he that which upon by been ruled then held must be something to have waived that else.
Suppose objection this had oral and the court had appellant’s correctly. rightly heard say Could we duty objection compre- counsel was under no to make his hensible to the court when it was did obvious not understand it?
It is us that counsel and con- the court both being sidered the motion as aimed at jury room. do not feel appeal,
We since the case has reached us on give we should interpretation different placed upon it in the trial. complains We did not Exception discuss Bill of jury argument. There, prosecutor it is shown that said: you consider, gentlemen, say
“Will what men these have (Speaking about it? Witnesses.) you of the State’s Or will gentlemen, consider nesses, testimony bunch wit- convicted you I perjured testimony.” tell complained portion thereof was the characterization testimony being perjured. of the witnesses as manifestly must determine im- whether proper, mandatory prejudicial, pro- harmful and or whether injected violated, vision of or it some the statute is whether hand, new and into the case. the other On harmful fact expresison prosecu- it was an whether determine must upon opinion evidence. based tor’s appellant’s witnesses, the state cross-examination On *7 developed some of them had been convicted of various offenses. parallel Appellant to draw between seeks case bar State, 54 Tex. Cr. R. Davis v. S. W. 366. In the McKinzey a Dr. had testified for the accused. In
Davis closing argument, prosecutor his stated as a his fact knowledge, juries paid in other cases had personal no attention McKinzey’s testimony. Dr. us, the distinction between apparent. To the two cases is prosecutor people Davis told the In the generally McKinzey’s confidence in veracity. had no Dr. In the bar, prosecutor told the were “convicted witnesses” and witnesses concluded from that testimony, bar, their fact that in the case at had been untrue. noted that objection sustained the to the disregard and twice told the above the same. find no reversible error reflected in this bill.
Remaining convinced that properly disposed of this originally, appellant’s rehearing cause motion for is overruled. Hampton
Orval v. State. 25,754. March Rehearing April 30,1952. Denied