No. 5400 | Tex. App. | Jun 11, 1887
Nine several bills of exception were reserved by the defendant, relating to the rulings of the court upon motions of defendant to quash the special and additional venires, and returns of the sheriff thereon, and other rulings made in the formation of the jury. None of these exceptions appear to us to be well taken. It was proper for the court, upon the application of the district attorney, to have the sheriff to amend his return upon the special venire, and thus meet the defect complained of in defendant’s motion to quash said venire. (Murray v. The State, 21 Texas Ct. App., 466; Sterling v. The State, 15 Id., 249; Washington v. The State, 8 Id., 377.) The amended return of the sheriff showed fully the diligence he had used in endeavoring to summon the jurors not summoned. The trial judge was satisfied with this amended return and the reasons therein stated for a failure to summon those not summoned, and we agree with the trial judge that the reasons stated for such failure are sufficient. It appears from the record that more than ordinary efforts were used by the court and the sheriff to obtain every person named in the venires. It is not required by the law that every person drawn as a juror upon a special or other venire shall be summoned, but only that reasonable diligence shall be exercised by the sheriff to summon them. (Code Crim. Proc., arts. 614, 615; Murray v. The State, supra; Lewis v. The State, 15 Texas Ct. App., 647; Charles v. The State, 13 Id., 658.) Defendant was not entitled to process for the jurors not summoned. (Code Crim. Proc., art. 618; Osborne v. The State, ante, p. 431.)
II. It was not error to permit the district attorney to ask the witness A. Contreras leading questions. It is explained by the trial judge that this witness was a very ignorant Mexican woman, dull of comprehension, not appearing to understand well questions propounded to her by a thoroughly competent interpreter, Such being the mental condition of the witness, she came within
III. It was error, we think, to permit a leading question to be propounded by the district attorney to the witness Patterson, as this witness did not come within any of the exceptions to the general rule disallowing such questions. But permitting a leading question improperly, will not be revised on appeal in the absence of a showing of prejudice thereby to the defendant. (Montgomery v. The State, 4 Texas Ct. App., 140; Henderson v. The State, 5 Id., 184). In this instance it does not appear that defendant might have been prejudiced. The answer elicited by the objectionable question was that the witness Contreras, when she testified before the coroner’s jury, was scared and excited. The witness Contreras had also testified to the same fact, and no attempt was made by the defendant to contradict her statement. The error being one without prejudice to the defendant, the conviction should not be set aside because of it.
IV. It was not error to reject the written testimony of the witness Contreras, taken before the coroner’s jury. This testimony was offered by the defendant for the purpose of impeaching her testimony on this trial. In laying the predicate for the admission of this written testimony, the witness was asked if she had not made statements before the coroner’s jury, contradictory of her testimony on this trial, which statements were specified to her. She admitted that she had made said statements, and gave as a reason for making them that she was scared, and afraid of defendant, who had not then been arrested. It is a well settled rule that it is only upon a denial, direct or qualified, by the witness, that contradictory statements were made, that proof of them is admissible. (Whart. Crim. Ev., sec. 483.)
V. It was error for the judge, in rejecting the written testimony of the witness Contreras when offered by defendant, to make the comments in relation thereto, complained of in defendant’s bill of exception. “ In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same, or its bearing in the case,but shall simply decide whether or not it be admissible.” (Code Crim. Proc., art. 729; Wilson v. The State, 17 Texas Ct. App., 525.) But here again is an error which we regard as immaterial, because without prejudice to the defendant. The remarks of the judge objected to were made concerning testimony which was rejected when offered, and this testimony not being before the jury, for their consideration, his
We have cautiously and thoroughly examined and considered every question presented in the record, and find no error which" would justify a reversal of the judgment. The evidence is direct that the defendant committed the murder, and there can be no question but that it was murder in the first degree. The judgment is affirmed.
Affirmed.