Rippey v. State

29 Tex. Ct. App. 37 | Tex. App. | 1890

WHITE, Presiding Judge.

1. When the trial was about to begin, and after the jury had been impaneled, it was discovered that the clerk had neglected to endorse his file mark on the indictment. " The district attorney moved the court to have the clerk to make the proper file mark endorsement upon it, and this was done by order of the court, over objection of defendant, as shown by his first bill of exceptions. The ruling of the court was correct. Caldwell v. The State, 5 Texas, 18; Willson’s Crim. Stats., secs. 1942, 1943.

2. On the first day of the trial seven men were selected as jurors, and the court was adjourned until the next morning to enable the sheriff to procure talesmen from the country. As a matter of precaution the court had the regular jury oath administered to these seven jurors who had been passed upon and selected by the parties, and they were then placed in charge of an officer. On the next morning one of these seven men was found to be so ill as to be unable to sit as a juror, and the court, without the defendant’s consent, discharged him. Defendant’s counsel then moved the court to discharge the jury, that is, the other six jurors, and continue the case, which motion was overruled and the jury filled out with the talesmen who had been summoned. • Defendant, in his third bill of exceptions, states in connection with this matter that he exhausted his challenges and was compelled to take jurors who were not of his choice, but he states no reason why they were objectionable to him or why they were not fair and impartial jurors. The objection to this proceeding is that after a person has once been sworn as a juror in a case he can not be excused or discharged by the court unless the whole jury is also discharged.

This is the rule in capital cases, it being required in such cases that as each juror is selected he shall be sworn as a juror to try the case. In other words, each juror selected is impaneled (Code Crim. Proc., art. 642; Willson’s Crim. Stats., sec. 2290), and the court has no authority to excuse or discharge such juror without the defendant’s consent. But this is not the rule where the case is a felony less than capital. In these latter cases a juror is not impaneled, that is, sworn as a juror to try the case, until the whole jury has been selected and sworn as a body. Code Grim. Proc., art. 657; Ellison v. The State, 12 Texas Ct. App., 557. The fact that, as matter of precaution, the court had had these seven men sworn as jurors to try the case did not relieve them of the necessity of again being sworn, as was done, when the entire jury had been selected; and though sworn, they were not in fact jurors in the case until the entire jury was selected and they with the others sworn in a body as a jury as provided in article 657, supra. Heskew v. The State, 17 Texas Ct. App., 161.

There is no error shown in the second and third bills of exception relating to the organization of the jury. "Merely that an 'objectionable juror’ was impaneled and sat upon the jury after defendant exhausted his peremptory challenges, is not an exception sufficient to raise the question of the juror’s status in this court.” Hudson v. The State, 28 Texas Ct. App., 323.

3. Several of defendant’s bills of exception relate to the rulings of the court in permitting his witnesses to be impeached by evidence showing that they had made before the grand jury, upon the investigation of the case by that body, statements contradictory of their testimony as given on the trial. That a witness can be so impeached is no longer an open question in this State. Clanton v. The State, 13 Texas Ct. App., 139; Scott v. The State, 23 Texas Ct. App., 521.

4. Ho error is disclosed by the fourth bill of exceptions. The witness McGill was permitted to state that he had described the man who shot him before the parties started in pursuit. What description he gave of him is not stated in the bill. The evidence was in every respect admissible as far as shown by the bill.

5. The witness Weaver was permitted, over objections, to testify to a measurement and comparison of horse and boot tracks found and measured by him and compared with defendant’s track and the track or hoof of a horse found at Barker’s place, where defendant was staying and where he was arrested; and the said witness was allowed to state his opinion as to the similarity of said tracks. This evidence was admissible and legitimate. Thompson v. The State, 19 Texas Ct. App., 594, 595; Clark v. The State, 28 Texas Ct. App., 189; Garner v. The State, 28 Texas Ct. App., 561.

6. No matter worthy of discussion is shown by the sixth bill of exception.

7 and 8. The seventh and eighth bills of exceptions have already been discussed in connection with the third bill of exception concerning the impeachment of the witnesses by statements made by them before the grand jury.

9. The statement of facts shows that the witnesses were permitted to testify fully to what was said and done by all the parties with reference to the poisoning of the dogs. The ninth bill of exception was saved to the exclusion by the court of certain declarations or statements made by defendant to Bowen to the effect “that he did not know where the dogs could have gotten the poison.” In addition to the fact that the learned judge in certifying this bill says he has no'recollection of such ruling, we find in Bowen’s testimony that he swears that “ after Bob and Rippey (defendant) came back I did not hear them say anything about the dogs.”

10. The tenth bill of exceptions also relates to the impeachment of the witness by contradictory statements made before the grand jury, and is fully answered in our discussion of the third bill, supra.

11. The court’s explanation appended to the eleventh bill of exception is entirely satisfactory, and shows that the defendant has no grounds for complaint, because though the witness Ferguson might not have been sworn with and at the same time the other witnesses were sworn and put under the rule, he was nevertheless under the rule with them, and was sworn when put upon the stand to testify as a witness.

12. As qualified and explained by the court the twelfth bill of exceptions is without merit. His explanation as to the only serious question involved shows that it was not and could not have been raised as is insisted was done by counsel for appellant. He states that the stenographer’s notes sustain his recollection, and the other facts stated by him are to our minds conclusive that counsel must be mistaken. In the attitude in which the matter is presented in the record we must hold that no error was committed.

13. If any objection to the charge of the court given upon eircumstantial evidence was tenable it was fully met and cured by the defendant’s special requested instruction upon that phase of the law, which the court gave. Willson’s Crim. Stats., sec. 2498.

We have found no reversible error in the record, and the judgment is affirmed.

Affirmed.

Judges all present and concurring.