Murray v. State

21 Tex. Ct. App. 466 | Tex. App. | 1886

White, Presiding Judge.

A motion was made to quash the special venire summoned to try the case,—first, because said writ does not show in what case the same was issued, nor in what cause the said proceedings were pending; and, second, because the return of the officer upon the said writ is insufficient, in that it does not show the diligence used by said officer in his efforts to find the jurors not served.

The first objection is not borne out by the record, because the writ of special venire which was issued in the case shows the style and number of the case, and, whilst it may be true that in the preliminary recitals the name of the court or county in which the case is pending is omitted, it is distinctly stated in the mandatory part of the writ that the persons named are to be summoned “to be and appear before the honorable district court of Williamson county, Texas, at the court house thereof, in Georgetown, on the nineteenth day of January, A. D. 1886, then and there to serve as special jurors, as aforesaid, in the above stated case,” etc. This is in substantial compliance with the provisions and requirements of our statutes in regard to such writs. (Code Crim. Proc., Arts. 605 and 608.)

With regard to the second objection urged in the motion to quash said writ, it is shown by the sheriff’s return that seven names of the persons whom he was required to summon had been stricken from the list by him; but he failed to state in his return why this was done, and if because they had not been summoned, then the return was defective in failing to state the diligence that had been used to summon them, and the cause of the failure to summon them as is required by law. (Code Crim. Proc., Art. 614.)

This motion to quash the special venire was overruled, and upon motion' of the district attorney, the sheriff, over objections of the defendant, was permitted to amend his return upon said writ in reference to the particular indicated; and the defendant reserved an exception to the ruling of the court allowing said amendment.

There was no error in this action of the court, the return of the sheriff being amendable, and no possible prejudice to the defendant being shown. (Washington v. The State, 8 Texas Ct. App., 377; Sterling v. The State, 15 Texas Ct. App., 249.)

After the amendment of the return of the sheriff, the appellant moved the court that he have one day’s service of the copy of said special venire as amended, before he should be compelled to go to trial. He had already been served with a copy of the special venire more than one day before he made his aforesaid motion to quash the same, but he contended that the certified copy furnished him was not, in fact, a true copy of the names / anmmnnp.fi as shown in the amendment made by the sheriff.

This objection was not well taken. The certified copy served on the appellant, it is true, did contain the names of the seven jurors who had not been summoned, but their names were oblifc erated by having a pencil mark drawn through them. The names of all the persons summoned under the special venire were served upon the defendant more than one day before the case was called for trial, and that is all that the statute requires. (Code Crim. Proc., Art; 617.)

It is insisted that the court committed a radical error in failing to comply with the requirements of the statute as to the mode and manner of selecting and organizing the jury from and out of the special venire as summoned; that the court, in-proceeding to impanel the jury, did not have the names of those summoned as jurors called at the court house door, and require such as were present to be seated in the jury box, nor did the court afford the defendant an opportunity to apply for attachments for those not present. (Code Crim. Proc., Art. 618.) Nor did the court call up and swear or have sworn all those present, and test their qualifications, or hear their excuses, or afford appellant any opportunity of knowing who were present in obedience to the special venire facias (Code Crim. Proc., Arts. 619, 620, 621); but, on the contrary, the mode adopted for the organization of the jury was that prescribed by Article 640 of the Code of Criminal Procedure, without complying with any of the requirements of the statute as provided in the Articles above named.

The name of each individual juror was called in the order that it appeared on the list, and he was. separately tested as to his qualifications by the court, the district attorney, and the appellant, and this method was pursued, over the objections of appellant, until the panel of the jury was completed. Appellant’s objection is that the mode of impaneling the jury as pursued by the court was in direct contravention of the provision of the statute, and deprived this appellant of certain important rights accorded him by law. He insisted that the purpose and intent of Articles 618, 619, 620, and 621, of the Code of Criminal Procedure, was that all those summoned on the special venire should be sworn in a body, and all excuses heard and determined, and their qualifications ascertained, and absentees noted, so that the defendant in a capital case will only have a panel of qualified jurors, without legal excuse, in actual attendance, upon whom to expend his challenges and from whom to select his jury; that the mode adopted by the court of organizing the jury deprived him of those important rights and necessary privileges, and he was compelled to pass upon each juror tendered him without possibly knowing who of those remaining upon the list was disqualified, had excuses, or were absent.

It is provided by statute that, “when any capital case is called for trial, and the parties have announced ready for trial, the names of those summoned as jurors in the case, shall be called at the court house door, and such as are present shall be seated in the jury box, and such as are not present may be fined by the court a sum not exceeding fifty dollars, and, at the request of either party, an attachment may issue for any person summoned who is not present, to have him brought before the court.” (Art. 618, Code Crim. Proc.)

Article 619: “ When those who are present are seated in the jury box, the court shall cause to be administered to them the following oath: “You, and each of you, solemnly swear that you will make true answers to such questions as may be propounded to you by the court, or under its. directions, touching your service and qualification as a juror, so help you God.”

Article 620: “The court shall now hear and determine the .excuses offered by persons summoned, for not serving as jurors, if any there be, and if an excuse offered be considered by the court sufficient, the court shall discharge the person offering it from service.”

Article 621: “A person summoned upon a special venire may be excused from attendance by the court at any time before he is impaneled, by consent of both parties.”

These are the preliminary steps provided by the law for the preparation of the special venire, so. that a jury may be selected there from. And there is no doubt but that they should be followed, and that it would be better in practice, in this, as in all cases where the mode of procedure has been prescribed for the State, to follow the rules as adopted for the government and' conduct of the trial of her citizens. It is to be presumed that such rules have been adopted for some wise purpose.

In this instance the learned judge has seen fit to ignore the rules thus prescribed, though his . attention was attempted to be called to them by the objections of counsel for defendant, and his action was promptly excepted to at the time, as shown by defendant’s bill of exceptions in the record. That his action is in contravention of the statute can not be denied. If it is erroneous, then the judgment must necessarily be reversed. His action is inevitably erroneous if the statutes quoted are mandatory. If not, then the action, whilst it establishes a patent irregularity, is not a reversible matter. Are the statutes mandatory or directory?

“In respect to statutes,” says Mr. Cooley, “it has long been settled that particular provisions may be regarded as directory merely-, by which is meant that they are to be considered' as giving directions which ought to be followed, but not as so limiting the power' in respect to which the directions are given that it can not effectually be exercised without observing them.” Again, the same learned author says: “ Those directions which are not of the essence of the thing to be done,- but which are given with a view merely to the proper, orderly, and prompt conduct of the business, and by failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the act is performed, but not in the time, or in the precise mode indicated, it may still be sufficient, if that which is done accomplishes the substantial purpose of the statute.” (Cooley’s Const. Lim, 4 ed., pp. 89 and 93.)

In the well considered case of Hurford v. The City of Omaha, the court, amongst others, lays down the following rule as a safe guide in the interpretation of statutes relating to the question under consideration, namely: “ That when the particular provision of the statute relates to some immaterial matter, where compliance is a fnatter of convenience rather than substance, or where the directions of the statute are given with a view to the proper, orderly, and prompt conduct of business merely, the provision may generally be regarded as directory.” (4 Neb., 336.)

This court, in the case o'f Wilkins v. The State, without attempting to lay down definite rules for determining whether a statute is mandatory or directory, adopted as a safe and sound conclusion the remarks of Judge Moore in the case of Campbell v. The State, 42 Texas, 591, to the effect that, “when ever there is reason to apprehend that injury may have resulted to the defendant, especially in a case of felony, from a failure to observe directions given the court by the Legislature, we think, unquestionably, the judgment should be reversed.” (15 Texas Ct. App., 420.)

In the case we have under consideration, the statutes quoted above relate entirely to matters of procedure, and are directory, and if it were possible that an injury could result from a nonobservance of such rules, then no such injury is shown in this record, because the jury, as impaneled to try the case, was selected from the original special venire, which was not exhausted in the selection, and the selection was made in conformity with Article 640, Code of Criminal Procedure (Charles v. The State, 13 Texas Ct. App., 658), which is the mode prescribed for the final selection of the jury which is to try the case.

Opinion delivered June 5, 1886.

Another error assigned is that the court overruled defendant’s application for continuance. Four witnesses were named in the application. Two of them appeared in court before the testimony was closed, and they were not called by defendant to testify. As to the other two, even if it be conceded that proper diligence to secure their attendance is shown, then their proposed testimony, viewed in the light of the other testimony in the case, does not appear to be material, and consequently no error is made manifest in the action of the court.

No complaint is made of the charge of the court to the jury. It presented the law plainly, fully, and fairly. As to the evidence, no unprejudiced mind can say that it does not amply support the verdict and judgment, which condemns this defendant to death for the cruel and inhuman murder of his own wife. There is no reversible error in the record, and the judgment is, therefore, in all things affirmed.

Affirmed.