*1 ing weight. percent by You are in- alcohol in excess of four percent whisky four structed that alcohol in contains excess by weight.” being urges whisky
Appellant as to the record is silent charge sold and that bour- that the in effect instructed the whisky. bon was charge,
Assuming we that such was the of the court’s effect injury see appellant. whisky, describing
“Bourbon” a drink means used dictionary being “Whisky produced corn in Bour- definition from County, Kentucky; hence, whisky bon from mash similar only chiefly corn corn.” inspectors
The mixed drinks contained alcohol in served the testimony. per cent, excess four under the chemist’s find the the conviction and evidence sufficient to sustain We appears. no reversible error judgment is affirmed.
Johnie Hue Johnson v. State. 30,162. No. December 1958. Rehearing January 28, Motion for 1959. Overruled *2 Texarkana, Friedman, Harry Friedman, Harkness & appellant. Douglas, Attorney, Austin,
Leon for the state. State’s MORRISON, Presiding Judge. murder; years. punishment,
The offense is four erring appellant’s husband was the direction deceased, appellant defense which ired the no end. The sole appellant that in self defense. shot the deceased appellant One Mitchell testified that called the deceased to her stated that he saw over automobile and shot her twice. He weapon approached appellant’s deceased’s hand as she automobile. Thompson
Emma that in a conversation with Sue testified shooting prior appellant approximately two hours kill the deceased. had told her she intended to testifying behalf, Appellant, stated that she had in her own caught shortly her husband in with the deceased before bed broomstick, and, him to the aid of a had forced homicide with that one occasion return to his stated on connubial bed. She kill threatened to chased her knife and deceased with butcher necessary get away her and her from her if order to husband to her. She stated that threats had day communicated similar approached her the homicide the deceased that on going I am you him and saying, to take “I told I was automobile something get attempting you,” kill and was even if I have to purse shot her. of her when she out appellant’s con- portion of the that The state introduced had never threatened that the deceased recited which fession the remainder introduced appellant, and the defense to kill the and, further, thereof, recited the which husband trouble and when called her automobile she the deceased who came to * * * my gun got my out of at deceased “reached in me I purse and shot her twice.” ap- against jury resolved the issue of self defense
pellant, questions shall raised bills of we discuss the argument by exception in the order advanced in brief appellant. eminent counsel for the charging urged It is first the trial erred in not court V.A.P.C., in accordance with the Article terms of against as to her milder attack to defend a lesser or
distinguished deadly from a In Herrera v. attack. State discussing necessity Rep. 175, *3 706, Texas the Cr. 261 2d S.W. charge article, said, of a the con under said “It has we holding referred to sistent of this that the attack there Court attack; refer has reference to an actual that it does not have to, injured party applicable it is about ence nor is when the doing preparatory attack.” make an attack is to the some act 416, State, 163 Rep. 2d See also Montes 291 v. Texas S.W. Cr. Rep. 733, State, 44, 2d 431. and Booker v. Texas 302 165 Cr. S.W. bar, possession appellant weapon In the case the at the saw no deceased, appellant’s may the that said the and most testimony preparing attack is that the was to make an deceased against appellant her that the deceased would and the was afraid giving facts, necessity kill her. such there was no Under charge requested. rested, appellant a witness
After the state had called good reputation. appellant’s this testified When who as to stated, excused, appellant’s “If the Court witness was counsel jury,” please, I like at this time to state our defense to would replied, “I it is out of order after be- court believe testimony.” ginning your new, nothing there was com- at the outset observe
We plicated appellant’s case at defense bar. or unusual about prone to resort parties man and were Both were after the same attain their ends. to violence to 338, State, Rep. Texas House v. 75 Cr.
Reliance is had stated, judge “I will overrule In that case the 206. S.W. statute,” that he this court concluded plain letter of the later case of McBride v. In the overruled. himself should be State, Rep. 308, 1091, 110 Texas 2d took another Cr. 7 S.W. we look at House and concluded as follows: opinion that, having' granted expressly are
“We the statute time, place procedure to the accused at a certain in said right, claimed, statement, properly to make the if But, arbitrarily eannot be denied him. to avail himself of such right, proper he must either assert in its order as laid down it good doing.” in the statute or else show reason for not so bar, why In the case at explanation there is no made as to opening did not offer to make his statement at 642, Y.A.C.C.P., says made, the time Article it should have been good varying since she has shown no reason for from the statute, terms of the we would not inclined to a trial reverse procedure who insisted that outlined in the statute approval followed. be v. McBride cited with as late Foster State, Rep. 372, 148 Texas Cr. 187 S.W. 2d we are it, especially inclined to follow in view of the nature of the case qualification and the trial court’s to the in which he certifies bill appellant’s panel already explained counsel had expected prove. full nature of the defenses which she request A was made for a venire. This trial held after date effective of the amendment of Article V.A.C.C.P., county ain in which the wheel was provided by qualification Article law. The court’s V.A.C.S. regular panel reflects that there had been called a *4 present ap- and that were in the courtroom when pellant’s motion for a venire was made. are aware We why legislature mig*ht of no constitutional reason not enact 601-A, supra, Article twenty years, why which has been the for than law more provisions
its could not extended be to include why population, counties which do not have cities of certain or controlling here, the same should not be error in the find no ruling declining request. court’s in Supreme States, opinion by Court of the in an United Missouri, 578, Hayes 68, Justice Field in L. ed. v. 120 U.S. 30 Sup. 350, provided for 15 7 Ct. held that a state statute which peremptory challenges having in cities the state in cases for only 100,000, providing population of over while challenges statute, 8 elsewhere in the not unconstitutional. was 1231, Sup. Ocampo U.S., 91, also L. ed. 34 See v. 234 U.S. 58 281, 712; Salsburg 545, Maryland, ed. 98 L. Ct. v. 346 U.S. Sup. 280, cited. 74 Ct. and the cases there
293 State, 517, 674, Rep. Moore v. 162 Texas 2d Cr. 287 S.W. upon by appellant, the latest case relied was tried before 601-A, supra. effective date of the 1957 amendment of Article A motion for continuance was filed due to the absence of the witness Sara Mae Fisher. said No affidavit of witness was trial, attached to said motion nor to the motion for new and no overruling- error is in reflected the action of the court State, 488, same. Rep. Gonzales v. 161 Texas 2d Cr. S.W. 167, State, Rep. 120, and Massoletti v. 165 Texas Cr. 303 S.W. 2d 412. calling
No error is reflected in the action of the court appellant’s case out of numerical order on his docket. Sowers v. State, Rep. 345, 949; 157 Texas Cr. 2d Article S.W. V.A.C.C.P.
Appellants’ complaint proof by last relates to the state that person deceased disposition. of kind and inoffensive relatively In opinion State, recent of this court Clark v. Rep. 180, 158 Texas Cr. 2d we S.W. reaffirmed the rule State, laid Rep. 524, down Martin v. 112 Texas Cr. 17 S.W. 2d 1258, V.A.P.C., and held that under the terms of Article following, more, might proved: but 1. dangerous That the deceased was a man of violent character.
2. That the deceased was a man of kind and inoffensive disposition. 3. might That the deceased reasonably was man who
expected to execute a threat made. proof in the case at bar well within comes the statute holdings set forth above.
Finding error, judgment no reversible of the trial court is affirmed.
DAVIDSON, Judge (dissenting). *5 guarantees go
More constitutional here. appellant may This have believed that she was entitled to equal protection protection the of the law and the equal of guaranteed
laws, by state and this Constitution Texas, (Art. 1, 19, United States Sec. Constitution of Fourteenth Amendment to the United Constitution States), not, according majority opinion is but she this case. legislature appellant may
This have that the this believed delegate suspend state could not court the a district (Art. 1, 28, Texas), a law of but this state Constitution of Sec. is such not now true. protected appellant may
This that she was have believed against general being law was tried under law when applicable (Art. Texas), such but Sec. Constitution is not now the case. may
This that under Constitu- have believed protected by judiciary tion and of this state laws she was against arbitrary powers, this but she state exercise of protected. is not so are, they
Are statements our true? If Constitution guarantees longer its court can strike down and exist. If this destroy guarantees particulars men- the constitutional tioned, any may down other court guarantees likewise strike this court provisions Consti- the other contained in the tution.
Appellant indicted, tried, of the crime convicted aforethought, capital felony of murder with malice which was (Art. 47, P.C.). “ ‘special
A is in a case order venire’ court, commanding a writ issued of the district summon such sheriff to may thirty-six, persons, not as the court a number of less than order, day writ; appear in the before the court on named from whom the for trial of case to be selected.” (Art. C.C.P.) indictment, upon an any “At after time his arrest de- written, upon may an
fendant order for obtain stating counsel, supported of himself or motion affidavit ready present expects trial of his at the that he to be attorney may also obtain such term of court. State’s (Art. 588, C.C.P.) or written motion.” order oral *6 they say exactly Those statutes mean is that what —which upon right special capital one trial in a a case has the to venire jury from which the in case is selected. of such to be upon Those statutes have this state the statute books of original adopted. legislature ever since our has code was The directly repealed never them. legislature drawing provision, by statute, for made special generally, special provision venires made also
applicable in certain Arts. counties. 591 and Vernon’s C.C.P. legislature
It attempted was not destroy until 1937 that the right special capital of one to demand a in a venire require accused, to force and protest, tried his to be over by jury by a special year, not selected from a venire. In Chap. Regular Legislature, Acts of the of the Session 45th appearing C.C.P., legislature, 601-A, as Art. Vernon’s having in population 250,000, counties 281,500 conferred upon Judge “the having capital jurisdiction Court of a case in special which a motion for a venire has been made” the arbitrary right special capital refuse venire in a case. 1949, by
In Chap. 623, Regular Acts of the Session of the 51st Legislature, 601-A, C.C.P., Art. Vernon’s was amended so as to delete popu- therefrom reference to counties of certain lation and apply having make the statute to counties therein city 231,500 population by preceding as shown federal census. arbitrary of the district in such counties special
to refuse a venire was in both contained enactments. In legislature, by Chap. 327, Regular Acts of the Legislature, again Session of the 601-A, 55th amended Art. * Special “Art. Vernon’s C.C.P. certain counties. jurors “In all counties of this State where in either civil or criminal cases jury provided may by provided are drawn from a wheel as is now hereafter be many jurors (100)
law and as where as one hundred have been summoned such county regular capital trial, for for the service week in which such case is set for Judge jurisdiction having capital of the Court of a ease in which a motion for made, grant venire has been shall or refuse such motion for require jurors regular venire and moned such refusal ease to sum- county regular for service such for service for the week in which such may case is set for trial and additional talesmen as be summoned C:C.P.*, all so as to strike therefrom reference Vernon’s population provisions applicable in all make thereof jurors counties where or criminal cases are drawn from civil wheel, many (100) “where as one have hundred county regular for week been summoned in service *7 such capital and in which such case is set for In such counties trial.” having Judge jurisdic under such “the of the conditions Court capital special a has tion of in which a venire motion for made, grant special shall venire or refuse such motion for by regular upon require and the tried refusal case to be regular summoned county for for service in such service * * capital for the week which such set for trial case is by court It was the trial arbi- virtue of statute that trarily special and re- appellant’s request refused for a venire her, quired by jury from protest, over her selected to regularly jurors. the drawn
It is that use thereof and his statute and the trial court’s say appellant’s thereunder constitutional action which I violated rights above mentioned.
Exactly 601-A, C.C.P., do, and what what does Art. Vernon’s given instance, the construction should thereto? In the first special repeal statute does not and the law relative to venires right special capital case, of the as accused to venire in expressly by 588, Arts. and Those statutes conferred C.C.P. rights thereby judge are intact and the conferred left acting chooses, liberty, perfectly under Art. if so 601-A at he grant request special venire, provided in to as for statutes. not, dealing then, any question repeal art of here with
We legislature right by capital upon trial for a of the of one felony special dealing right to venire. are here with We legislature upon arbitrary of the to confer the district right deny jury-wheel power to to counties an accused thing special iniquitous to a in a case. Such is the does, the statute therein lies the to this violation guaranties of the constitutional mentioned.
.Criminal counsel a cation the Sheriff therefor.” Procedure, but list upon order persons the Clerk of such summoned Court as provided Court shall service in Article furnish for such week the defendant upon Code appli- his of legislature practice, is what has done In actual here 601-A, passage has said the. of Art. Vernon’s C.C.P.: It judges jury-wheel the uncon- district in all counties: “You have trolled, unreviewable, power deny upon arbitrary to one venire, capital felony right ex- to a for a pressly 588, conferred Arts. 587 and C.C.P.” legislature given judges the
Thus the has those district right C.C.P., unqualified suspend at their Arts. 587 pleasure, will and Sec. our in direct violation of Art. Rights, says power suspending Bill laws which “No Legislature.” except by in this shall State be exercised C.C.P., stop But took Art. Vernon’s did not there. It from an to a is had accused the venire which charged capital felony all others with trial for a *8 jury counties wheel in where was not force. right non-jury-wheel county
A district a has no to arbitrarily special capital refuse venire case. He has that right jury-wheel counties.
Thus, by statute, appellant legislation that a victim class is of whereby deprived rights in which and is equal she of the con- by enjoyed situated, by similarly ferred law others deprived protection laws, equal guaran- she is of Rights teed Art. our Sec. Bill of of Fourteenth Amendment to the Constitution of the United States.
Indeed, C.C.P., 601-A, Art. is pro- Vernon’s violative of that (Art. 3, 56) says vision of the Constitution See. which no special relating passed empaneling petit law shall be of juries. arbitrary right require felony
The to an accused in a jury case to be selected from drawn from legislation jury special special touching wheel for week is empanelling petit juries of in criminal cases and is forbidden by the Constitution.
Yes, .appellant may have this believed that Constitution guaranteed right charged to her the to tried as are be others offense, but, alas, with the same character she awakens to guarantees nothing her out that mean and afford find protection. arbitrary denial to this
To the and unlawful right special jury by selected from a venire her to be tried law, protest. my I enter solemn drawn accordance with right. gives right special It to a to venire is valuable of the names those selected and from whom an accused notice jury is have in his are to be selected. He entitled to day’s on a full notice of those who have been summoned serve challenge 601, C.C.P.). (Art. has the the venire He (Art. 608, array full of those summoned on C.C.P.). rights when he is of those are accorded the accused
None jury composing the required select a from those week of court. some given 601-A, should to Art. Ver- construction that be C.C.P., is that it the list from those com-
non’s furnishes which drawn and summoned. As posing a venire are so construed, and carries out that statute is valid the intent of legislature. that it a cardinal It must remembered rule is statutory susceptible a statute construction where destroys and other one of which sustains constructions two statute, adopted. that which sustains will be my give which brethren to Art. The construction Ver- *9 give destroys C.C.P., I would it. The construction sustains non’s upon capital right preserves trial in the to one and to it special from a venire. selected be rely upon Supreme the cite and decisions of My brethren legislature hold that a state States which the United of Court legislation, special empanelling or regulate, class the may violating protection equal the clause the juries without the to of the United Amendment Constitution States. Fourteenth holding, only say directly that have to it is I con- As to Ill, state, of this Constitution which trary Sec. to Art. legislation empanelling juries, class in special or prohibits holding Supreme contrary to Court of that it and Miller, al, County, et v. El Paso this court. See: state this Bobbitt, City 1000; v. 2d of Fort 136 Texas 150 S.W. Worth al, Tongate, 470; Brownfield, 2d et v. 121 Texas 36 S.W. Rep. al, 352; State, Texas et 2d and Rios Cr. 109 S.W. v. 609, 2d 77. S.W. approving validity upon population,
In of statutes based always required population the courts of this state have that predicated upon preceding last federal in order census legislation. might special not the statute class concerned, going So far I am I am to follow mandate placed of our state Constitution and the construction thereon by our courts. Supreme by my
The decisions of the cited Court brethren here, applicable 601-A, are not for another reason: Art. Ver- C.C.P., special non’s does abolish jury-wheel not venires in expressly special counties. It authorizes venires in counties. gives statute is judge void because it to district jury-wheel arbitrary right counties the to to accord some de- capital special fendants deny cases to venire and it to arbitrary power gives others. It is the that Art. 601-A to judge suspend pleasure district or enforce at his will and general according every law of this state each defendant felony right special trial of a ato venire which renders that arbitrary power statute unconstitutional and the thereby conferred unenforceable. case, supra,
As to the Moore special in which the to a preserved my venire was maintained which brethren say applicable C.C.P., is not here because Art. Vernon’s written, was not in existence at the time that case I call arbitrary power judge attention fact that of a district grant prior or refuse a venire was contained statute of which Art. is an amendment. 601-A express authority supporting my position case is Moore authority arbitrarily that a is without refuse any capital felony case. I jurispru- submit this is first time in the criminal *10 arbitrary this state that denial dence of of a approved to one in a has and held not to error. be reversible
300 following
In the denial was cases such held to reversible State, Rep. 395, 538; Viley 92 error: Texas Cr. 244 v. S.W. 87; State, Rep. v. 109 Texas 3 2d Hatton Cr. S.W. (supra). State, Rep. 517, Texas Moore v. Cr. 2d S.W. me, yet To this state is until Constitution of funda- protect- Every mental law land. citizen is entitled to its of this ing guarantees. guarantees destroyed are it indeed When day a sad in this state.
This was entitled to be in accordance with not That she did receive. law.
I dissent.
Henry Leija v. State. 30,223. No. December 1958. January Rehearing
Motion for Overruled 1959. Henley, Lemons, Antonio, D. and Jewell Theo. Pat San appellant. Jr., Green, Attorney Criminal District
Hubert W. James Barlow, Attorney, Antonio, District Criminal San E. Assistant Austin, Attorney, Douglas, for the state. Leon State’s