27 Tex. Ct. App. 450 | Tex. App. | 1889
This conviction was for murder of the second degree with the penalty fixed at five years in the penitentiary.
The State challenged the proposed juror Bailey for cause, upon the ground that he had served one week on the jury in the district court of Dallas county within the past six months. Bailey had served five days during a week. The court sustained the challenge, and counsel for appellant excepted and reserved his bill. The learned judge appends to the bill this explanation: “Defendant never exhausted his peremptory challenges.”
The juror was not disqualified under article 3010 Revised Statutes (Thompson v. The State, 19 Texas, Ct. App., 593.) But “ appellant did not exhaust his challenges.” ' If he had exhausted every challenge allowed him by law, Bailey would not have been restored to competency as a venireman. Bailey being a competent juror, the State should have been compelled to challenge him either for cause or peremptorily.
The indictment alleges that appellant shot and killed de-ceased “ with a weapon to the grand jurors unknown.” If the pleader had alleged a gun as the weapon, under such allegation proof that deceased was shot with any character of firearms would have been competent. But, having omitted to name the
We are of opinion that the objection to the question was well taken; because, if it was the purpose of the State to show that the grand jury had used the necessary diligence to ascertain the weapon (whether gun or pistol) with which the deceased had been killed, then the question was too broad—too comprehensive—and was clearly calculated to elicit the answer given by the witness, and which answer was most evidently incompetent and very prejudicial to the accused. If the State desired to show diligence on the part of the grand jury to learn whether deceased was shot with a gun or pistol, the witness should have been asked what efforts, if any, did you make to ascertain the fire-arm with which the deceased was killed? Such a question could have been answered without danger to the rights of the accused; the witness would be confined to the diligence regarding the weapon.
The indictment alleging that the deceased came to his death by being shot, the State was bound to prove this to be true, and this fact must be proved by competent -and not hearsay evidence. Over objection of defendant the State proved by the witness Alexander that he was justice of the peace in the precinct in which the body which was supposed to be that of Calvin Spears was found, at the time that said body was found, and that he held an inquest over said body, and that he and and the jury of inquest examined a great many witnesses at said inquest, and searched the ground near where the body was-found for weapons, and from the hole in the head and the appearance of the body, and the testimony of witnesses, it appeared that deceased came to his death from being shot.
This testimony is obnoxious to two objections. 1. A part of it is hearsay. 2. A part is the opinion of the witness, the re-
Appellant’s last assignment of error is that the verdict is not supported by the evidence. In this we think counsel for appellant is correct. We "are not willing to sanction, and allow to serve as a precedent, a verdict founded upon such vague and inconclusive facts. (The Reporter will give the facts in full.)
For the reasons noted above, the judgment is reversed and the cause remanded for another trial.
Reversed and remanded.