Mitchell v. State

43 Tex. 512 | Tex. | 1875

Mooke, Associate Justice.

Most of the questions presented for our consideration by this record have been fully examined and determined by the court in the case of Shaw v. The State, which was decided at an earlier day of the ■present term. It is unnecessary, therefore, for us to discuss them again. There are, however, a few points presented in this case, which were not in that case, upon which it is proper that we shall express our views.

1. It is said the court erred in refusing to change the venue. If appellant has the slightest grounds for complaint of the action of the court on this account it is not shown. Whether required to do so or not, the court called before it and examined the persons suggested by appellant in his motion to ascertain whether there was such prejudice against him in the county of Hood, where the case was pending, as to prevent him from having a fair and impartial trial. On hearing the testimony thus elicited the court refused to change the venue. The evidence upon which this ruling was made not being before us, we must presume that it was correct.

2. We can see no ground for appellant to complain of the action of the court permitting the district attorney to withdraw his acceptance of the juror, and standing him aside on a peremptory challenge by the State, who was shown to have expressed a design to get upon the jury so as to convict appellant and impose upon him the penalty of death. The facts alleged in the affidavit impeaching his qualification and fitness as a juror in the case were neither explained nor denied. Under the circumstances disclosed in the record it was not only within the discretion of the court, but it was its duty, to have purged the jury,-not then completed and finally accepted, by standing aside a party who by his own admissions was shown to be disqualified and wholly unfit to be a member of it, and who must have gotten upon the jury through perjury to accomplish a sinister purpose of some kind. Whether the statement made before his selection as a juror was a candid expression of his opinions and wishes, or let his purpose in making them have been what they may, they show beyond all question that he was unfit to sit as a juror in the case, and it was due to the defendant as well as to the proper administration of the law that he should have been removed from the jury. The court was not bound to suffer the case to proceed after being informed of a fact from which it was evident, if the jury was organized without excluding from it this objectionable party, his presence would taint any verdict which might be returned. And if the verdict should be in favor of the State, it would be its duty to grant a new trial. Ho injury is shown to have resulted to appellant from the action of the court. He is not shown to have exhausted his challenges, nor does it appear that the jury was not completed from the original venire.

3. The court did not err in its requiring the jurors to be passed upon and accepted or rejected as they were called. (See Horbach v. The State, supra, 245.)

4. The action of the court touching the competency of Du Vail as a juror, assigned as one of the grounds for a new trial, is not shown by the record. It needs, therefore, no comment.

5. Appellant has no ground to complain because of the calling of his case out of the order in which it stood upon the docket. In cases such as this, it is the duty of the court to cause a special venire to issue for summoning not less than thirty-six nor more than sixty persons from whom the jury is to be chosen. (Paschal’s Dig., art. 8016.) This necessitates the fixing a particular day for the return of a venire, and the trial of the case. And it is right and proper that the case should be taken up on the day thus fixed for its trial, whether it has been then reached upon the regular call of the docket or not.

6. The motion to quash the venire was properly overruled. The objection to it went at most merely to their competency as jurors of some of the parties summoned. If the venire could be quashed on this ground, it would be extraordinary to find one free from objection. An objection of this kind may no doubt be addressed to the discretion of the court. And should so large a number of disqualified parties be returned upon the venire as probably to deprive the defendant of the opportunity of selecting a fair and impartial jury the court, in the exercise of its discretion might and would, no doubt, on motion of the defendant, quash it and cause a new venire to be "issued. In the absence of anything in the record showing the contrary, we must presume the action of the court overruling the motion was correct.

We have endeavored to give all questions brought before us by this record that patient and thorough examination which the nature of the case and serious result which our action on it must induce. But after doing this we are forced by a solemn sense of official duty to the conclusion that there is no error disclosed in the record which would warrant a reversal of the judgment.

The judgment is affirmed.

Affirmed.