*1 371 though may in col- years, reformed this 25 the sentence R. 156 Texas Crim. proceeding. Ex Parte Brewer lateral See (2) 430. S.W. Judge hearing Rogers Appellant in testified before appointed he had that none for him cause no counsel and 16,437. No. testimony
Such the above reci- is not sufficient overcome Further, testimony judgment. tation found in the relator’s record, contradicted including other facts and circumstances judge. affidavit the trial being lawful, prayed Relator’s confinement the relief for is denied.
Opinion approved the court. rehearing.
on motion for MORRISON, Judge. original
In opinion, our we said entitlеd relator was 25-year to have his sentence construed as indeterminate sen- tence of not years. less than 5 nor more than He asks now that we reform proper such sentence. This is not the tribunal may such motion. Relator move the trial do court so. But not, whether penitentiary is done or authorities and the Texas Board of Pardons and Parоles will be controlled in relator, their they cases, treatment of just are in all as if provisions reformation had been effected. The of Article P., mandatory. C. C. are
Relator’s motion for is overruled.
Herman Lee Ross v. State. 25,636. January No. Rehearing 12,1952. Denied March Petition Court of the United States Writ of Stay 2,1952. Certiorari and of Execution June Denied *2 Judge Presiding. Dibrell, Hon. C. G. Dent, Galveston, apрellant.
Thos. H. Raymond Galveston, George Magee, County Attorney, E. and Blackburn, Attorney, Austin, P. for the State’s state.
DAVIDSON, Judge. Nesti,
Appellant was convicted the murder of al- Guido leged 1, That havе been committed on June conviction 164, (Ross State, was affirmed this court Texas R. v. 156 Cr. 126) 233 S. 2d over contention that the indictment W.
373 Negro race, fatally defective because wаs in the selection one, is were discriminated which he grand jury indict- organization returned the and granted writ United ment. States Court 529, 682), and 946, 95 L. (340 Ed. S. Ct. certiorari U. S. Texas, 154 Tex. Cr. thereafter, upon Cassell v. 629, Ct. reversed L. Ed. R. 339 U. S. S. appellant’s contention that sustained decision of this court and defective for the stated. indictment was against appellant, returned new indictment was again for the his trial thereunder he convicted murder punishment appeal death. from this assessed at It is conviction that court. now before this *3 support appeal
In former the held the sufficient we fаcts to conviction, they the and not will restated. here
Upon special jury try from the venire which the to case this selected, appeared was to be there nаmes of five the veniremen Negro who were tion, Upon members of the voir race. dire examina- possess necessary those were to the statu- shown tory 612, qualificatiоns (Art. jury P.) C. C. service. It fur- appears ther jury try case, that in the selection of the to this state, through prosecuting attorney, the peremptorily its chal- lenged thereby Negro and еxcluded each of the veniremen from serving upon jury. the contention,
If we understand it is that in thus challenging peremptorily Negro all the members of race on jury panel arbitrarily prevented any the state’s counsel mem- Negro serving jury, ber of the race from on the and that such arbitrary practiced County— conduct had been in Galveston by prosеcuting attorneys through- where case was tried — years, Negro out so the that no member of the race ever had a upon jury trying served capital a member of that raсe for a felony. arbitrary It insisted such is that conduct and exercise right challenge peremptory of the of constituted a denial of process guaranteed by due of law the Fourteenth Amendment to the Federal Constitution.
Chap. pro- 3 of the Criminal Code of Procedure of this state statutory jury vides the for the selection of a in the capital Among a things, provided trial of ease. other it is party each and defendant —shall be entitled to fifteen —state peremptory challenges (Art. 615) peremptory a and that chai- (Art. assigning therefor, any
lenge is one made without P.). C.C. recognized challenge ac- right peremptory of (Art. ap- P.) statute C. C. law. The the common corded right code, peremptory original of chal- and the peared in our unchanged throughout thereby has remained lenge accorded fact, appellant Nowithstanding would have us such years. the right upon to the effect that ingraft a limitation here Negro offense, capital try a jury a state’s of to selection the exercising upon peremрtory precluded from counsel jury panel quali- who are race members of destroy Obviously, jury to so hold would service. fied for challenge only to the also right peremptory not state but accused. right challenge reject, peremptory is the chant, Ed. select, jurors. Mar 25 U. S. 6 L. United States v. jurors by prohibit rejection exercise 700. To peremptory furnishing have the effect of would jurors. In this connection additional means for the selection demand that it must be that no man has remembered guaran he race. The constitutional be tried goes say process tee than to that he shall not of due no further jury selection of the because be discriminated his race. *4 say,
Finally, appellant’s wоuld be to to sustain contention Negro effect, in could a fair of the race obtain impartial only capital of the trial in a case when members upon jury. racе are We are aware of no the that would to so hold. authorize us right having to exercise a
State’s counsel the unlimited therefor, peremptory giving any it without right when, where, how, is immaterial or in what manner that is or has been exercised. argument complaining exception appears of bill of of argu- qualification
state’s counsel. The оf the bill that the shows nothing by Moreover, ment was in authorized the facts. there is exception negativing argument the bill of the fact that the argument reply to of counsel. not in appearing, judgment affirmed. No error the by court. approved the Opinion REHEARING. MOTION FOR APPELLANT’S
ON BEAUCHAMP, Judge. very a has filed motion which
Appellant has he the his contention that has been clearly placed court before guaranteed by protection law the Four- equal of the denied States, in of the United teenth Amendment Constitution systematic a in discrimination Galveston has been there petit jurors County in for the trial cases for selection the argument presents long period time. His his view a num- a of decisions of Court of the United States re- ber grand jurors. lating It is now to the contended that selection jurors be extended to the selection of for the this should trial of cases. question particular in this must a case be based prosecuting attornеy,
contention that the
in the exercise of the
peremptory
statute,
fifteen
allowed to him
has
excluding
jury
succeeded in
regularly
from
service all
who were
legally
оn
drawn
to serve.
list
gives
privilege
This statute
both
sides
same
and the at-
torney
side,
exercising
on either
in
peremptory
his fifteen
chal-
lenges,
give
required
is not
any
may
his reasons in
case. It
community
be that he does not like
party
from which the
organizations
comes, or some
he
is inclined to think
juror belongs.
may prefer
age
He
someone
a differеnt
class, or it
frequently
is known to be
true that he
does
eye.”
like “the cut of his
His
peremptory
a
exercise
challenge, to
murder,
the extent of fifteen in a
trial
as fixed
statе, places
law of
no restriction whatsoever on
him.
question
The identical
adversely
was decided
appellant
State,
McMurrin v.
156 Tex. Cr. R.
This was torney, County also case frоm Galveston and the same at- Dent, represented appellant Thos. H. in that case. *5 Supreme The Court United States refused writ of cer- Reports, tiorari. U.S. Court Law ed. Opin- Advаnce (dated ions, 5, 1951). Vol. Nov. In our holding view its against conclusive contention in the instant case. If lodged we reversed this case under the contention you all saying state that сannot we would it list, your while at same time the on untram- to fifteen retain his would defendant holding thereby pref- an would work undue such
meled ground solely race. The confusion on the to him erence holding cannot be estimated. result from such We would statutory provisions subject and are on the are bound grant pre- motion under conditions without sented.
Appellant’s motion for is overruled.
Vergle Trice Bennett v. State. 25,875.
No. June Judgе Chapman, Presiding. Hon. Alton B. attorney appellant
No appeal. of record on George Blackburn, Attorney, P. Austin, State’s for the state. MORRISON, Judge. primary driving intoxicated, offеnse is while with charging prior counts purpose enhancing convictions for the punishment; punishment, years jail and a fine of
$1,000. The witnesses for the state testified automobile by aрpellant,
driven road, while on his left hand side of the collided containing with an high automobile boys, some school causing injuries to appellant. They them and to further testi- appellant fied that was intoxicated.