*1 34 1938 prior amendment in the Constitution of this to its state being substantially suffice, required
would not oath now dif- ferent. opinion
The cited are and the authorities therein case decisive of the here raised. It follows that sus- contention that reversed must be his conviction should be tained. judgment
Appellant’s rehearing granted, motion for re- aside, оf affirmance now reversed and set the cause is manded.
Opinion approved by the court. rehearing.
ON STATE’S motion DAVIDSON, Judge. state, rehearing, that our its motion for contends
holding prohibits does violence to collateral the rule which upon right State, judge attack hold v. office. Snow 263, Tex. Cr. R. 114 S. 2d 898. W. dealing right special judge are here with of the right cаpacity but, rather, hold that office his act
judge, right upon taking depends office his oath of prescribed Constitution, constituting prece- condition right capacity. dent to his to act in that case, expressed. supra, fully The Enloe sustains the views rehearing The motion for is overruled.
Opinion approved by the court.
Frank Low v. State. No. 25230. March 1951. Rehearing May 1951. Denied *2 Green, Judge Presiding. Hon. Howard P. Pichinson, Utter, Hale, Davis & L. Dean B. Kirfc- Norman
ham, Corpus Christi, appellant Wesley Zarsky, Refugio, for
George P. Blackburn, Attorney, Austin, State’s for the state Judge. MORRISON, murder; thirty-five punishment, years offense is in penitentiary. There no do not contention that facts
suppоrt the verdict. Appellant presents eight exception, he bills five which
urges reflecting exception as four deal error. Bills one to challenge overruling appellant’s with the di- court’s for cause necessary rected at four different veniremen. for court It pass only Exceptiоn Bill of 4 directed at venireman No. Abney. because, F.W. This is so shown the court’s an- as just Abney examined, nouncement before was eleven chosen; challenges been and had had used his fifteen granted challenges. peremptory been three extra ruling ap- We now look to the correctness of the court’s challenge interrogatory pellant’s Abney. to venireman On direct attorney, Abney believe he district that he did not stated opinion guilt had an of the defendant or innocence further would He stated influence him his verdict. and that merits of the case his mind was about the if fair sides tаken.
believed could be a to both heard examination, Abney had not On stated that he cross hearsay dis- had heard some witness discuss case but leading and those up homicide cussions of events asked, transpiring “Do time He was then thereof. your mind at this opinion phase fixed as to some time?”; guеss “Yes, sir, answered, I do.” which he require stating opinion
After he had would which changed, court. He Abney questioned evidence to answered sufficient the talk he had heard was guilt opinion or innocence him to form an with reference to the question: *3 propounded of the defendant. The him this court then “Q. doing Now, then, you course, are of understand what we —selecting jury impartial perfectly a men without of fair and anything on their mind work in- which would on them testimony. jurors fluence them as in outside of the case the trying get are be fair and any a of twelve men must who impartial defendant, not the have tо both and the State notion in should be their mind what feel whatever as to you you you done with a or do the case. Do are such man feel got something your you you feel from in what have heard have you juror?” probably mind would a influence To answered, which he “I I influenced it.” don’t believe would be Thе court concluded its examination as follows: “Q. you go jury you if And do feel could in selected on try strictly with an it box mind as to this case and Yes, sir, on the law and the A. evidence? believe so. “Q. considering might gone anything Without be- fore, you put Yes, feel can A. that aside? sir. “Q. you say you jury? And would do that if taken on thе A. Yes, sir.” examination,
This ended him to and the court held be qualified. 636, juror’s a qualification test of Art. under C.C.P. 13, 1879, substantially
Subdiv. of identical C.C.P. of which is 1925, 616, 13, to Art. Judge down Subdiv. of was laid C.C.P. State, in v. Tex. Davidson Suit Cr. R. 17 S.W. wherein he said: juror statute, disqualify on account in order to a
“Under guilt part on his as to or innocence of conclusion party things necessary: (1) trial, That there two are is way juror some mind of conclusion established guilt party; (2) con- of such That such or innocence finding juror in clusion will influence his action in a verdict. juror
... The fact has in his mind a mere established guilt party conclusion of a on trial innocence conclusion, disqualification. sufficient cause for That if enter- tained, go further, in- must character ‘as will ” finding fluence him in his verdict.’
Applying us, this test to the do not feel that facts before we arriving was shown that at would be influenced in a verdict from what had heard or that trial court abused overruling challenge his discretion in for cause directed Abney. venireman Exception complains
Bill of No. 7 misconduct. An examination jurors thereof reveals that ten of the who tried hearing case were in attendance on the motion new trial. The offered three the state Appellant’s none. brief directs this court’s attention to the testi- mony Jury earnestly Foreman E. L. Yolland and contends that reversible error therein shown because of a comment on the testify. defendant’s failure to *4 In appellant’s counsel, answer to replied, “The Juror Yolland
question why was asked stand, he did not and take the witness I answеred privilege it that it was the defendant’s whether wanted to the take witness stand and that we were take not to into discussion whether he was to take far the stand or not as part as our it. of It was in form question and answered the manner, in that and no there was further discussion.”
He questioned: you, was further you “Let me I ask refer now statement, to a juror, either that a either or someone in ” question answer to reputation.’ that said ‘on account of his And answered: reputation, “Not on account of his not reputation, account of question Frank’s but in answer to the that a defendant whenever he takes the that would sytand up reputation, the merely regard whole life of his a rule in to taking stand, a defendant does not to take stand.” put
The witness further: the substance was as stated “But general law, apply question to the and was answered as to immediately dropped after answer and and was was go spirit and of an and not as a discussion did not answer trying get discussion, into a what I am to clear.” is state, explained Yolland fol- On cross examination as questions spirit: “The were asked in No more than lows: Judge any set on whether we were confined to asked Green fit, voting; was as and mannеr of his answer to vote we saw questions re- spirit were was of that asked in that true gard that, given accordance, to and those answers were discussion, no there was more and that reason I could get questions paper spirit not at all that true sign that I affidavit.” answers refused to by appellant’s to The affidavit he refers was submitted hearing, prior re- to counsel to Yolland he has prepared fused to execute The affidavit had been so the same. to show a failure take discussion reputation. the stand on account his room, At the time above discussion was had in the agrеed appellant’s guilt. jurors had all as to It clear not begun punishment such to ballot on the when whether balloting spread from statement made. Such covered the ninety-nine thirty years. jury posed Woolsey
Juror related that some member of not why testified but did had not given any being question. remember answer Shipp any question. Juror that he did not hear testified interrogated. only jurors three These were the charge jury, The court’s had instructed as is custom- done, testify arily should the failure the defendant concerning guilt. his considered them evidence *5 are now of whether the confronted with determination jury mеrely a above was or discussion of misconduct charge. given juror by court’s It will be seen from answer that he discussion Yolland considered what as a was said principal charge law a reference announced in the and not personally. they their will be noted that stated based It case, only law, and that verdict on and the evidence did influence their verdict. “the matter the defendant” about 710, C.C.P., prohibits Art. the allusion or comment testify says jury counsel defendant’s failure to but against An allusion shall not such as circumstance him. take relatively easy from used comment is to ascertain the words while the entire trial must be reviewed to determine whether against testify took his failure to as a circumstance appellant him. We do not feel that that such was established testimony done shown above. place appel-
This comment took after all the had voted guilty. punishment lant Their convictions as to the varied from thirty ninety-nine years. They finally punish- assessed his thirty-five years. ment at State,
In Wilson v. 129 Tex. R. Cr. S.W. 2d expresses, this court reviewed subject the law on the we think years. stated, the views of this court in recent Therein it is appeal “The is whether the facts made evident that apрellant’s testify failure to were taken against circumstance him.” holdWe such discussion personalized must be as to and that a discussion of the charge court’s alone will not constitute error. We do not feel that the trial court abused its discretion in overruling appellant’s motion for new trial. No further bills exception urged. Finding are record, no reversible error in the judgment is affirmed.
ON MOTION FOR REHEARING.
GRAVES, Presiding Judge. Appellant comprehensive rehearing has filed a motion for alleging, among herein things, other that we were incorrect original opinion our in that we made the statement: “At the time the abovе discussion jury room, was had in the agreed all had guilt. as to clear It is not begun whether punishment to ballot on the when such statement balloting was made. spread Such covered the from thirty ninety-nine years.”
From the following excerpts: statement of facts we take the
“Q. guilt you will ask whether the first balloted оn the Yes, or innocence the defendant? A. sir. “Q. guilt Were divided on to the or innocence that as way? way. was it all one A. All one “Q. way Guilty. A. What was that? “Q. Yes, you years? sir. And A. then on the term of balloted charge.” spent studying some time contrary may possibly this made a While witness have the defendant’s answer to whеn allusion was made to making testify, justified failure to still we think we were original opinion. quoted the above in the statement Appellant based proposition stresses time the further jury, upon testimony Yolland, the foreman of of Mr. during wherein it said in the room that discussion he person that their deliberations made statement some stand, why Low did wondered Frank not take the witness following the foreman made statements: “Q. during your you de- I will ask to state whether or not jurors pertain- by one liberations a statement was made defendant, taking ing Low, A. witness stand? Frank question was The asked.
“Q. you your place took in that rеlate in own words what Will question why did take the asked he connection? A. The was defendant’s and I that it was the witness stand answered it privilege stand and he to the witness whether wanted take he to take the take discussion was we were not to into whether part it. It form stand or not as far our question no further in thаt manner and there was and answered discussion.
“Q. statement, you, you either Let I refer now a ask to me question juror, in answer to that either or someone reputation.’ account of his A. Not on said ‘on account of his reputation, reputation, in answer Frank’s but not on account of stand to whenever takes a defendant merely reputation, up that would whole of his life stand, regard taking does not rule in stand.” take the went, immedi- and was This far as the discussion was as further referred rtely dropped and was not after this answer to. C.C.P., follows: statute, reads as Art. Vernon’s permitted *7 action shall
“Any in a criminal therеin, any the failure of defend- testify but in his own behalf against testify taken as circumstance not so shall be ant to alluded to or commented on him, same shall be nor * * in the cause counsel that the fact It will be noted therefrom defendant’s not taken to take the stand shall circumstance failure аgainst him, the same be alluded to or commented on nor shall testimony by counsel in the cause. The offered us herein shows by anyone alluded nor it not further to commented that was by anyone than further as it is shown herein. contention made statement of jurors something
one took of the into consideration that had to them and that raised been submitted of the reputation. place, In defendant’s the first the defendant sub reputation jury by filing own mitted his reason of the request suspended for a sentence. Ann, See Art. Vernon’s C.C.P., cited; Mangum State, and cases also v. 139 Tex. Cr. R. 94; Stewart, (2d) 480; 148 Tex. S.W. Cr. R. 188 S.W. (2d) 167, place, and cases cited. In the next evidently any took no consideration of kind of this discussion that has complained of because been fact that two further hearing testified on they the motion for new trial as to what However, heard of the conversation. one of them did hear jury say right foreman had no tо take into consideration the defendant’s testify, failure to and the dropped; matter was then and the other one nothing heard there jurors present There were of. seven more in court at the time hearing placed of this none of them was on the witness Furthermore, we no stand. see error in such statement of the foreman, we do not think could have affected this verdict way. any fairly appellant the court
We think liberal to the in that gave peremptory extra challenges, eigh- him three making appellant, caution, in all for in an teen excess of having challenges appellant for cause and three overruled had used challenges jurors. peremptory He three thus returned challenge peremptory appellant presence in order relieve himself of to utilize forced been jurors. objectionable of these three herеin, presented motion for rehear- no see error
ing therefore overruled.
Ed v. Odom State. May 2, No. 25292. 1951. *8 Presiding Judge. Floyd Jones, Hon. Welch, Breckenridge, appellant.
L. H. Breckenridge, George Gracey, County Attorney, and E. Joe Blackburn, Attorney, Austin, for the state. P. State’s
WOODLEY, Judge. 667-19B, (f), for violation of Art. Subdiv. The conviction is punishment a fine P.C., Ann. with assessed at of $100. Vernon’s complaint charging part and reads of the information follows: * * “* Odom, styled that Ed hereinafter defendant on filing day the 25 of November A.D. and before about Texas, County Stephens and this Information in the State engaged in the beer retail at a was then there sale of place retail situаte when the sale beer at of business there law; then authorized the said defendant was and there permit an intoxicated said defendant did then there person premises, to remain licensed said intoxicated on his such being person commonly then and there known the name * * Wallace, M. L. *.”