30 Tex. Ct. App. 314 | Tex. App. | 1891
An indictment charging murder need not allege the killing to have been “unlawfully” done. A murder alleged to have been committed upon ‘ ‘ malice aforethought, ” or “ express malice aforethought,” necessarily charges an unlawful killing. Stephens v. The State, 20 Texas Ct. App., 255; Jackson v. The State, 25 Texas Ct. App., 314; Bean v. The State, 17 Texas Ct. App., 60; Hall v. The State, 28 Texas Ct. App., 146; Green v. The State, 27 Texas Ct. App., 244. The court did not err in overruling the motion to quash the indictment.
Baker had served as a juror in the Criminal District Court of Harris County for six days during its April term, 1891. This cause was tried in June following. Appellant challenged said juror because of such service. The objection was by the court overruled, and a bill of exceptions reserved to said ruling. The State having accepted and the appellant having declined to challenge the juror peremptorily, he
Does subdivision 5 of article 3010 of the Revised Statutes apply in criminal causes and trials'? That provision of the civil statutes disqualifies any one as a juror who has “served as a juror for six days during the preceding six months in the District Court, or during the preceding three months in the County Court.” Looking at the provisions of the Code of Criminal Procedure, we find no such cause of challenge or disqualification of jurors, and none of kindred import. The disqualifying clause above quoted is found alone in civil statutes. By referring to article 636 of the Code of Criminal Procedure, it will be seen that one of the causes of challenge to jurors in criminal actions is based upon the fact that the juror entertains “conscientious scruples in regard to the infliction of the punishment of death for crime.” Ho kindred provision to this is to be found in the civil statutes. In this respect it is evident that articles 3010 and 3012 of the Revised Statutes and articles 631 and 636 of the Code of Criminal Procedure are not complements of each other, and not so intended to be regarded by the Legislature. An inspection of the provisions of the two codes will manifest other differences in this respect, but it is deemed unnecessary to notice them.
By virtue of the act of the Legislature of 1876 the grounds for challenge and of disqualification of jurors were blended in the general statute, and these disqualifications applied alike to civil and criminal causes, and it was so provided in the statute. Acts 1876, pp. 78, 83, secs. 1, 26. But under the revision of the laws of this State in 1879, the Legislature in its discretion and wisdom saw proper to change this rule and separate these causes of disqualification. By reference to the civil statutes and the criminal procedure it will be seen that each of the disqualifications of jurors are distinctly and clearly enumerated. Rev. Stats., arts. 3010, 3012; Code Crim. Proc., arts. 631, 636. Some of these provisions in the civil are very similar to those contained in the criminal statutes, while some are very dissimilar, and could have no possible application to each other. That the Legislature has the authority to provide similar or different qualifications for jurors in civil and criminal causes is beyond question, because it is so expressly provided by the Constitution. Const. 1876, art. 16, sec. 19. To sustain appellant’s exceptions, as contained in his bill, it must be held that the disqualifications set out in the two codes are but complements of each other, and the provisions of the statutes cited apply to each other interchangeably. Such a construction, to our minds, could not be successfully maintained, from the very nature of things. If such was the intention of the Legislature, why did that body in the revision so radically change the law from what it was prior thereto? It is evident that reasons for challenge to jurors exist incident to criminal causes that
Until 1879 these provisions relating to jurors, civil and criminal, were contained in one statute or act, and applied alike to both. Since that date said provisions have been separated and placed in different statutes and codes. If we look at the old law, the evils thereof, and the remedy applied thereto, we are forced to the conclusion that the legislative intent was to make these matters complete within themselves as applicable to each, and distinct, the one from the other, else that body was guilty of enacting some very useless and unnecessary legislation. We can not indulge this character of presumption, especially as it is evident that wisdom has marked the course of this work in this matter as now found upon our statutes. The very fact that the Legislature in enacting the revised codes, civil and criminal, provided specially the qualifications of jurors under each code, appropriately and separately, evinces very clearly that it was the intention of that body to make each independent of the other in so far as the details of said qualifications and causes of challenge are concerned. We are not discussing the exemptions from jury service, in this connection, that are enumerated in the civil statutes.
We are not unaware that there is an expression in Dunn’s case, 7 Texas Court of Appeals, 600, that may have been regarded as somewhat antagonistic to the views herein expressed. It was obiter dicta in that case. In Thompson’s case, 19 Texas Court of Appeals, 613, the court expressly states that the rule is one that is provided in the civil statutes, and quoting the rule from the civil statutes, remarked that the juror had only served four days, and was not disqualified even under that rule. But it is not said that that rule obtained in criminal causes;
The cases of Jacobs v. The State, 9 Texas Court of Appeals, 278, and Willis v. The State, Id., 297, relate to disqualification based on the fact that a juror sat upon the trial of the same case, or the trial of another case involving the same question of fact, and it was held that the provision under discussion in these two cases was applicable to both civil and criminal trials. This may be said to be correct, and is not antagonistic to the views expressed herein, because the same provision was found in both the civil and criminal statutes. Upon the question involved in the last two mentioned cases there is no conflict between the civil and criminal statutes. Rev. Stats., art. 3012; Code Crim. Proc., art. 636. We are of opinion that the court did not err in overruling appellant’s challenge for the cause set out in the bill of exceptions.
Dr. Burroughs testified that in performing an operation upon the deceased he found six perforations in the bowels of the wounded man, made by the bullet in its passage through the stomach, and that death
Exceptions were taken to the charge, because the same does not sufficiently present the law of self-defense, and because the court failed to charge the law applicable to circumstantial evidence. We do not think either of these exceptions well taken.
The charge on self-defense was a direct and pertinent application of the law of that phase of the case to the facts in evidence, and there were no facts that called for a charge on circumstantial evidence. The shooting of deceased by appellant was witnessed by several, and testified to by the appellant himself.
We find no error in the record, and the judgment is affirmed.
Affirmed.
Hurt, J., absent.