*1 Ex Parte Bronson. Cecil 25,993. 1952. No. November January 14, Rehearing 1953. Denied Salyars, Winston Brum- P. Brummett and A. P. W. Winston [ Lubbock, mett Counsel], appellant. Walker, County Spur, A. Attorney, George W. P. Black- burn, Attorney, Austin, State’s for the state. Judge.
WOODLEY, This county is an from an order of the court of Dick- refusing County, discharge ens appellant from confinement county jail selling whiskey his conviction for county. in said of conviction was affirmed this (Bronson court placed 563), appellant 2d jail satisfy days the 120 and the fine assessed. $500 One of the appellant members of before whom unpardoned convict, tried was an which fact was not known to court or counsel or to until after perfected. Appellant and, contends that is void there- fore, subject to this collateral attack because of this decision in Johnson
juror. He relies Judge Lattimore, speaking 162, 84 wherein court, said: *2 expressly named theft final conviction for “We observe challenge ground 616, C.C.P., for 3 of article as in subdivision 619, id., proffered juror, article makes a cause of for qualifi- an absolute to the for theft bar the fact of conviction the in- In such who so convicted. of one has been cation competence waived, juror and the cannot be of might void, and therefrom be would relief and brought be court, upon record corpus, but about favorably.” us, position act is in no before part follows: 616 C.C.P. as Article reads objection particular challenge to a made “A for cause is incapable juror, alleging unfit fact renders him or some which any may jury. made for one of the to serve be reasons: . . . any felony. of theft
“3. he has convicted or That been legal accusation “4. is under indictment or other That he any felony. theft for or organs
“5. he is insane or has defect in the of That such seeing, hearing, feeling bodily mental defect or or or such or jury disease to render him unfit for service.” as Article C.C.P. reads: juror impaneled appears “No shall when it that he is sub- challenge
ject third, to the article fourth or fifth clause of parties tho both consent.” consistently provisions This court has of construed these providing jury as for statutes absolute 179, a service. In case in Greer v. theft (now C.C.P.) other which sections of Art. 636 Art. 616 were involved, third, as to fourth remarked and fifth sections of the as article follows: juror
“A who for the causes absolutely incompetent ipso mentioned in the statute is facto juror, except third, aas in the mentioned in the fourth cases fifth Article which are: ‘Third. That subdivisions of any felony. Fourth, he has been convicted of or of That theft legal is under or accusation indictment other for theft or he any felony. Fifth. That he insane or has such defect in organs feeling hearing, bodily seeing, or or such or mental disease, him unfit defect renders service.’ With regard peremptory the statute is ‘no to such disabilities impaneled shall be when it that he is third, either to the fourth or fifth in Article cause of ” 636, although parties consent.’ In Easterwood v.
murder it was discovered after verdict had theft, been convicted of and this was made only plea the motion for new trial. was denied The because it pardoned. was shown that had been In Rice v. local option case, was reversed because a perjury pardoned. convicted of and had not been *3 disqualification court remarked the contained in subdivi- (now C.C.P.) sion 3 of Art. 673 616 had been held to be abso- lute, citing State, supra. v. Greer State and v. Easterwood Hughes State, 57, 952,
In v. 105 Tex. Cr. R. 284 S.W. the conviction was reversed it because on shown motion for new trial jurors one the who tried the con been felony, victed aof citizenship and his had not been restored. Judge In Lattimore, this case writing court, said: “One who felony has been convicted for a juror 3, 692, in this state. Subdivision art. Vernon’s Ann. Code Cr. Proc. 1916. This cannot be waived.” State, In 9, Bundick v. 543; 127 S.W. Russell State, 245,
v.
671;
84 Tex.
R.
Amaya
Cr.
209
State,
S.W.
and
v.
160,
In quoting the from Arts. 616 and 619 court, speaking Judge through Krueger, C.C.P. said: grounds “Ordinarily, for set article forth in said waived, 619, C.C.P., but when we consider article 136 subject who conclusion that forced are 616, supra, fourth, article
third, fifth clause although parties thereto. consent sit in could words, or 5 of within clause In if came other this, juror, 616, qualified supra, he would not be article support In of the seems, defendant. it be waived cannot expressed, authorities: we refer herein views State, 179; Tex. Cr. R. State, App. v. 52 Rice v. Tex. Greer conclusion 359, forced to the Hence we are S.W. 832. grant appellant’s refusing motion trial court erred in for new trial.” Judge Morrow, speaking State, Amaya supra,
And in v. court, said: given has uniform “The construction our statute imperative duty re trial court or the effect it of the viewing a verdict which was rendered court to set aside Wright unpardoned jury, convict. a member of which was State, State, 822; Bundick v. v. Tex. S.W. State, 543; Tex. 59 Tex. 127 S.W. Easterwood Cr. R. 179.” 14 Tex. Cr. R. Greer v. evidently (The Rice v. first intended for citation was 832.) Cr. R. Tweedle jurors impaneled judge the trial discovered that one of discovering judge, upon under theft. The indictment *4 dispose question, jury fact, the in order of the instructed to verdict, and, entering judgment to granted after convict Tweedle Upon a before him trial. from a conviction new. complain jury, to another held that Tweedle was not entitled granting of court’s action view of of his motion for in a new trial. writing opinion Judge Krueger,
In the in the Tweedle case C.C.P., court, quoted 616, 618, and 619 and said: Articles foregoing a “It would seem from the that if was articles theft, felony he a dis- under indictment for the offense of qualified juror. jury composed A whom men one of twelve within the not constitute falls mentioned would legal binding jury, and their verdict would not be on the de- fendant nor to enter a would the court be authorized conviction thereon. that in this case neither the
137 failing negligence chargeable with defendant state nor the state nor juror’s neither status since discover the questions which propound to him was authorized defendant juror.” disqualified him as a which have elicited the facts Many court be found to like effect where other cases grounds challenge under Art. had occasion to consider C.C.P., though C.C.P., all were not 616 and the effect Art. 619 arising passing upon or 5. under subsections See cases 734; State, v. 112 2d Lowe Terrill S. W. . State, 674; State, v. 88 Tex. R. 226 Seawell v. Cr. S.W. 56; Rogers State, Tex. Cr. R. S.W. 455; 88; 2d 109 Tex. 92 Tex. R. Steen v. Cr. 1047; Burton v. S.W. 2d Gonzalez 2d Tex. Cr. R. 195. ordering latter case it was said in reversal because unpardoned jury: of the service of an convict on again, any event, “. statute, being . . under the there question juror’s felony theft, of the conviction for a he not qualified juror; appellant only had been tried eleven qualified jurors, and he is therefore entitled reversal herein.” quoted length
We have discussed and at from our former opinions in though order to make it clear that the statutes under consistently discussion have been held to an entitle ato reversal if a conviction at the hands aof whose mem- bership included under subsections 4,3, C.C.P., 5or or Art. it was not until the Johnson (84 240) that such a conviction was declared to be void and to collateral attack ha- corpus beas final conviction. The Johnson a habeas proceeding, but alleged wherein it was in the amended motion for new it had been discovered since the trial that one of the jurors had been convicted of theft. The case was affirmed theory upon state had not had opportunity pardoned, had been show having ad- journed hearing for the term without a the motion for opinion new trial. The statement found in the to the effect that *5 incompetence 3, of a under Sec. of Art. 616 C.C.P. would judgment subject render the to by collateral attack habeas cor- pus aas void necessary was not to the decision of questions appeal raised on the is, therefore, dicta. ques- corpus proceeding wherein the no habeas know of We upon by passed this court. raised has tion here cited, believe above and decisions the statutes From pros- judge (1) it to trial to be: When rule 4,3, challenge or subject under subsections pective is to impaneled, C.C.P., without not be shall 5 Art. 616 though challenged, and even regard whether he be im- (2) be If such a and the defendant consent. state judge prior known to the trial paneled and it becomes judge disqualified, the should verdict he is so return of a (such disqualified juror as in Burton take action to remove the 2d 768 and Tweedle 86 S.W. grant 2d, supra) newa Tex. 218 S.W. or If, upon (3) motion for new of conviction. trial trial, the event jurors impaneled it that one or more of the be shown C.C.P., Art. 616 under such or 5 or subsections regard showing ordered, without a new shall be judg- (4) injury probable injury A waiver. or of consent or jury, a ment member of which entered verdict of C.C.P., is not void under said Art. after final and conviction, to collateral attack habeas
though be under subsection 3, 4, or 5 of said after Art. C.C.P. be first discovered perfected final. has been or the has become gives effect “when it rule stated some to the words appears” “appear” found in Art. 619 C.C.P. If it does not perfected the court before or the becomes final, disqualification will considered on the basis be same under other sections of Art. C.C.P.
Montalvo v. Cr. R. authority proposition question juror’s of a dis- under another section of Art. qualification 616 C.C.P. cannot corpus after conviction. raised part provides Penal person Art. 34 of the Code in that “no after insane he committed an who becomes offense shall be tried for the same while in such condition.” Yet this court has not attempt upheld insanity proceed- to show such in a collateral ing judgment. parte Minor, Ex See McKenzie, Ex parte 2d 771. *6 delinquent provides that Art. V.A.C.S. 2338-1 sec. 13 years age) shall be (a under child charged male 10 and over any in court. with or convicted of crime parte Ex Huddleston upon of a collateral attack the conviction defendant ground delinquent child at the of his that he was a time rejected. required pointed that trial was It was out statute against charge pending delinquent the transfer of a criminal juvenile when “it shall be ascertained” that the accused was of age. judgment held Ex The was to be voidable but not void. Minor, support parte supra, cited in case in the Huddleston of the view was in effect an the resort habeas give effort of coram to have this effect to writ nobis facts were existed which unknown known, judge which, if would have made the improper.
Having
out,
reached the conclusions above set
we overrule
contrary
by way
statement
of dicta
in
found
Johnson v.
ON MOTION FOR REHEARING.
BELCHER, Judge. Appellant, in again his rehearing, motion for insists that holding were error of conviciton against him collateral attack corpus. thorough After careful and study appellant’s able brief therein, authorities cited we remain convinced that correct conclusion was original reached in opinion. rehearing The motion for is overruled.
Opinion approved by the court.