*1 TURNER, Appellant, Oscar Texas, Appellee.
The STATE No. 42194. Appeals of Texas. Criminal Nov. Rehearing March Denied
H *3 trial under the terms on the motion for new 40.06, We Vernon’s Ann.C.C.P. re- shall discuss examination original voir dire. maining four from the stated, unequivocal- Watkins Venireman ly, putting anybody just “I don’t believe in to death.” said, don’t Venireman “I believe Jackson penalty.” quote further death We follows,: from his examination as *4 “Q. Jackson, if juror Mr. selected as a * * * case, you in the could case, you, hearing a could after facts, and facts a if the were of rather extreme nature. For exam- ple, a man a put bomb on an air- plane where his mother was up, gets and board blow it he E. and Charles Wal- W. Westbrook Joel Insurance, and evidence lace, appointed counsel), for (court Waco insane, shows he is not could appellant. you as a sit member Eichelberger, Atty., Martin Dist. Wa- D. a case like that and vote for Vollers, co, Atty., Aus- D. State’s Jim penalty death ? tin, for the State. (cid:127) “A. don’t penalty. I believe death “Q. scruples You have conscientious OPINION
against it P MORRISON, Judge. Yes, “A. sir. murder; punishment,
The offense is
challenge;
I sustain the
“COURT:
death.
you are
Mr.
excused.”
Jackson
injured by
Two
killed and
men were
two
pistol
during
the use
as
Venireman
answered
follows:
Johnson
filling
robbery.
course of a
station
Well, no,
put it
I
“A.
I’ll
like
just
this.
1st, 9th,
Appellant’s
29th
capital punishment
don’t believe in
error
relate to the
he
selection which
go along
just
and I
couldn’t
with
contends was
effectuated
violation
it under no circumstances.”
Witherspoon
the rule of
v.
Illinois
State
al.,
510,
1770,
et
U.S.
L.Ed.
S.Ct.
is
Bradford
the most
Venireman
2d 776.
he
yet
his statement that
doubtful one
foreman,
not,
sign a verdict
could
if elected
points
his brief
ten
any case
him from
of death in
removes
hearing
veniremen. At the
on the motion
scope
Witherspoon rule. This state
for new
trial affidavits of six of the ten
would,
believe,
un
disqualify him
presented
ment
we
to the trial court which
Holman,
394 U.S.
show that
of the
der the Boulden
thoroughly
each
six were
opin
qualified
22 L.Ed.2d
Witherspoon
for excuse under the
89 S.Ct.
holding of
explains
ion
further
rule. These affidavits
for
were admissible
Witherspoon.
hearing
consideration
Court
Court at
ground
pie
The second
is that
the death
interviewed did not favor
systematically
State
excluded black venire
His re-
penalty
punishment
for crime.
Illinois,
jurors
men from
upon Witherspoon
supra,
service
in his case. At
liance
trial,
the hearing on motion for
misplaced.
a new
He
no
has
cites
case which
State
peremptory challenges
exercised
recognized
poll
as valid evidence
required
and was not
give
his reasons
further
and we
of none.
con-
know
We
them,
for using
limiting
Ross v.
157 Tex.
clude that
did not err
However,
proc-
Cr.R.
He stated he struck venireman Eddie line-up concerns the identification. We Henderson, man,” a “colored because the quote findings: trial from the court’s police records showed that he had been in vestigated burglary. he He stated that day January, 18th A.D. On the Hardeman, struck venireman “colored” styled trial during the of the above teacher, school very because “he was eva *5 cause, defendant, his at- numbered sive on whether or give not he could ever torneys, attorneys, and State’s all be- penalty death and other made state Court, ing present person in open in minority ments about ap races and court into separately, offered evidence pointed attorneys.” He further stated that the in-court identification of the defend- he struck “colored” venireman' Willie ant, Turner, by Oscar the witnesses Har- Hobbs, of complaint by because made Wolf; ry and, Volcik and Patrick at each Attorney’s Hobbs to the District Office offer, objected the defendant to said evi- having about stopped by Highway requested, granted, dence and and was Patrol driving when others were as fast as hearing presence hearing and outside he was. of develop sup- to in evidence port objection sup- of to its and motions testimony His further is clear that press ground said evidence on the there systematic was no of black exclusion said were the re- in-court identifications persons jury. from the Johnson illegal of line-up by sult identifications State, Tex.Cr.App., we re S.W.2d witnesses, by the defendant said and cently the propriety discussed of State’s that said in-court identifications were challenging panel. black members of violation of various state and federal con- rights stitutional of After the defendant. error, Appellant’s ground third of hearings, of the conclusion each said of it, properly we understand that since the Court admitted the in- into evidence prior the indictment was returned to Au by court identification of the defendant gust (the day change Article law, said as a witnesses matter and fur- 37.07, V.A.C.C.P., effective) and became ther, relating as trier of the facts he was not tried until after such date that admissibility, issue of their the Court the jury not pun authorized to set his by found from the evidence clear and Appellant’s ishment at death. case was proof convincing beyond any and rea- 23, 1967, first set trial on and October sonable doubt said in-court identifi- we find merit no such contention. cations origin were source and inde- pendent line-up of the identification. 4th, 5th, His and grounds 6th of er ror are permitted prove that he was not The Court therefore finds and con- facts, of a poll says results Belden he which cludes from the above and all the would show that more than peo- half questions, evidence admitted on the and 11th, 13th, witnesses, appellant’s and that the 59th
the demeanor of the grounds granting relate to the the State’s in-court of the defendant identifications .of Henry and by challenge to venireman overrul Harry and Pat- the witnesses Volcik Lacy appellant’s challenge ing to veniremen completely independent rick are Wolf Bridges. and Each stated that could any viewing pictures of the defendant pun trial, agree assessing not a verdict before the and said witnesses years ishment at low as two independent viewing completely are proven that the murder was had State identifying in said said defendant argument that committed with malice. His line-up, completely independent and are challenge this was a that could be made pic- viewing said combination only to by the relates then identification; and line-up tures and said Henry Bridges. be that While that said are bas- in-court identifications Henry Bridges against had a bias solely upon ed the observance said wit- (Article murder statute Vernon’s Ann. 1967; nesses of said defendant on June P.C.) disqualify as to them so under viewing pictures that the of said and said V.A.C.C.P., pass 35.16(b) (3), we need not line-up any not identification does question upon did because right fashion affect the of the defendant peremptory challenges not exhaust his a meaningful cross-examination of objectionable juror upon no was forced Harry witnesses Volcik Patrick him, Tex.Cr.App., Pittman v. Wolf, nor deny said defendant effective S.W.2d itself; assistance of counsel at the trial
and that said in-court identifications of
said
defendant
said witnesses
Appellant’s
14th and 15th
from,
by,
obtained
any
and did not result
insufficiency
error relate to the
*6
denial
process
of due
in
violation of
evidence and the failure of the court to
legal
defendant’s
rights.
charge on the
evi
law
circumstantial
pointed
out
two
dence. We
This seems
in
to be
accordance with
positively
ap
wounded
identified
witnesses
Wade,
218,
United States v.
388 U.S.
87 S.
pellant
person
filling
as the
who robbed the
1926,
Ct.
tends that is fatal variance between there a grounds His 10th and 12th in that the proof relate to the indictment and the challenge proof State’s killed veniremen Garrett shows that the Kaskas were They they Harris. both stated that had more than the indictment one bullet while- opinion an appellant formed that both guil imply was would that one bullet killed 9, V.A.C.C.P., ty. So, 35.16(a), beginning Sec. we stated in them. provides party may weap that challenge either from the same one fusillade of.bullets expresses right opinion. by appellant, venireman who such an one after fired
15
could
not
the conviction
other,
Kaskas.
the death of both
caused
conceivably
injured by this manner of
see
be
merit in this contention:
find no
We
418,
The
is clear
State,
submission.
evidence
Spanned
Tex.Cr.R.
parties named in the indictment
both
357,
17
duplicitous. This
has
that he
unable to was
contention
been
if he did
was
know
wrong
right
fully
discussion of
distinguish
met
our earlier
between the
particular
grounds
through
of
charged.
the
act
error 17
as to
the
the then Circuit
opinion
also
See
of
ground
overrule his 47th
We
S.,
Burger
Keys v.
120 U.S.
U.
Judge
is
in which he stated that the verdict
error
343,
F.2d
App.D.C.
contrary
the
and the evidence.
to
law
relates
ground
The
numbered 37
of
relates
ground
error
The 48th
hospital
testifying
Wilson,
from the
to Dr. Moore’s
questioning
the
of one Marvin
already
had
intro
appellant
witness,
pun
records which
on
appellant’s
hearing
at the
no merit
into
find
duced
evidence. We
if he
where
was asked
ishment
Wilson
ground.
such
prior
appellant’s
about the
misde
knew
im
the
of
meanor conviction for
offense
40,
39,
38,
grounds
His
error
officer,
429,
an
personating
V.A.
taken
photographs
to the
41 and 42 relate
P.C.,
turpitude.
did
moral
which
not involve
have
shooting.
at the scene
We
term,
record,
prior criminal
has
to find
with care and fail
examined them
by the
amendment of Article
defined
inflammatory and hold that
them
37.07, V.A.C.C.P.,
so as
include misde
properly admissible.
in a
where the conviction was
meanors
Court of Record.
re
grounds
43rd
55th
testimony
late to
of Dr.
ground
Wittstruck
His 49th
relates
error
performed
concerning
autopsy
testimony
Rolston
stated
to the
one
who
held
shortly
appel
two deceased. This Court has
killings,
and as
after
proof
scene,
be limited in its
appellant
the State
not
ex
fleeing
lant was
State,
stipulate,
an
v.
Rodriguez
offer to
name
bearing
to him a credit card
hibited
Tex.Cr.App.,
They were
Anton Kaska. BELCHER, Judge (concurring). alleging acquired by
The state no benefit appellant was undisputed and David It is that the the murder of both Anton killings who only person All of the at the scene of the Kaska in the same indictment. only person who pistol, at he is the the state exhibited a evidence was offered put two the man who pistol, had shot he is the trial would have been admissible one body bullets in the of David Kaska alleged the indictment the murder of one Kaska, these body of Anton and that of them. pistol the same three bullets fired from hand, of David and ap- caused the death the other On conviction pellant for the of the Anton Kaska. The name of murder one deceased, David precluded Kaskas would not his con- the names of Kaska, subsequent Anton are the viction at a trial for the murder Kaska and Kaska, of the other for the fact that names in the indictment and in the court’s but charge. both charged murders had in the same The fact that the verdict finds been murder, appellant guilty indictment. of the offense of specify but does not killed David or Anton Kaska under deprived state was thus of a second undisputed evidence that he killed both opportunity penalty, to seek the death had David and Anton should warrant a re- failed, the first pun- or to obtain cumulated Legislature pro- versal. The its wisdom failed, ishment if both reason of vided for pre- situations like the one here fact that charged both murders were sented it when enacted the Texas Code same indictment.
Criminal Procedure: The errors were in the charge. court’s
The statutes require the court to de- “TRIAL AND ITS INCIDENTS liver a charge written setting forth the applicable law to the case and the Chapter Thirty-Six rules relating to charge are set out in 36.14, 36.15, Arts. 36.16, 36.17 and 36.18 THE TRIAL THE BEFORE JURY V.A.C.C.P. appeal charge 36.19 Review of “Art. Art. 36.19 specifically pro- V.A.C.C.P. vides that appears by whenever it the rec- appears by it the record “Whenever ord in any criminal appeal action on any any upon appeal criminal action any requirement of said articles has been 36.14, 36.15, requirement Articles 36.- disregarded, the judgment shall not be re- disregarded, 36.17 36.18 has versed unless appearing from the judgment shall not be reversed un- record was calculated injure rights appearing less the error the record from defendant, or unless it appears from the injure was calculated to the rights of record that the defendant has not had a fair defendant, appears or unless impartial trial.
record that the not had a has defendant impartial (Emphasis I concur trial.” in the conclusion that the errors fair the court’s were not calculated to added) *11 that anything passenger reveal and lean inside the car on the The record fails to injure had reasonably (Volcik) side and that a hand that he calculated being by person he rights appellant up that observed held show year impartial (later car to be 19 old David has not had a fair and trial. shown dropped; did Kaska) just fell or that he fired, any not hear shots even the ones that respectfully I concur. struck him. ONION, body (dissenting). Two bullets were found in the Judge body
David Kaska and one in the of Anton Kaska. appellant that while The record reflects Scott, were companion,
and his Willis robbery opinion appellant’s of Pat process my an armed Volcik, dealing allegations at the of the Harry attendants with the Wolf Texas, West, on indictment, Wolf Service Station the court’s and the ver- Kaska, 8, 1967, Anton and David questions. dict raise serious June son, into said station. father and drove to see told the attendants Omitting parts, the formal the one count “Play it cool.” what wanted and to alleged indictment that did “Oscar Turner voluntarily aforethought and with malice re- Anton Kaska testified that Wolf Kaska, kill Anton Leo Ed- David Jr. his car quested battery water of that the ward Kaska shooting pis- them with (Wolf) raised be checked and that he tol.” (emphasis supplied) hood of the car went while Volcik water; the car battery that the hood of At the conclusion of guilt stage appellant; of the that An- blocked his view charged bifurcated trial the court got ton Kaska of the car and came out appellant’s timely over jury, presented writ- car, leaving the front of the David Kaska ten objection, as follows: front passenger seated in side car; right seat or the side of the “Now, therefore, you find and be- battery water Volcik had returned with the beyond lieve from the evidence a reason- right when the front window of the car able doubt that on day or about the 8th seemed to explode; that then Anton Kaska A.D., 1967, of June, in McLennan Coun- fell; that the around came Texas, ty, Turner, defendant, Oscar ; front of (Wolf) the car and him shot did voluntarily and with malice afore- that he then heard “You Willis Scott shout thought kill Kaska, Anton Leo got one running”; got up that he and fled Jr. David Edward Kaska then and there to the rear through of the station some shooting pistol, you them with a then woods shooting while he heard and scream- shall find guilty the defendant of murder ing; motorist; stopped he that the aforethought, alleged with malice police called; that he returned to indictment, in your and so state ver- station hospital. and was taken to the
(emphasis supplied) dict.” testimony
Volcik corroborated Wolf’s Evidently believing issue and further related that when Wolf was fell; shot he murder malice fled without was raised but was himself shot up evidence, walked and while stand- the court submitted such issue in ing over him shot again; him he then the same murder manner the issue of observed appellant go to the Kaska car with malice.
21
course,
stage
charge,
exactly
of
is
like
guilt
the
Scott
of
not
at
returned
The verdict
that in the case at bar.
proceedings reads:
the
Scott,
to
Without reference
this Court
defendant,
“We,
jury,
find the
the
State,
368,
Barton v.
227
88 Tex.Cr.R.
S.W.
Turner,
the
of
of
offense
guilty
Oscar
317,
147, held
a
13 A.L.R.
that under
count
aforethought.
murder
malice
with
persons
charging an assault
to rob two
jointly,
the
be con-
defendant could not
M. Headen
Donald
1
victed if
one
the assualt was made on
Foreman.”
State,
of
persons.
68
Cf. Davis v.
brief
that
The State’s
contends
“[t]he
400,
1094; Price v.
Tex.Cr.R.
152 S.W.
this
beginning
the
position
State’s
State,
300, 202
38 Tex.Cr.R.
S.W.
Kaska
Anton and David
case has
that
view
special charges given, the
court
transac-
of one
in the course
were killed
ground.
refused to reverse on this
The
by
tion,
provoked
appellant,
the
one act
grounds.
reversal
in Barton was on other
(emphasis
appellant.”
intent of the
one
State,
471,
Pate
239
v.
91 Tex.Cr.R.
S.W.
the State’s
to be
supplied)
appears
thus
It
967,
case,
robbery
among
a
noted
other
manifests
the indictment
that
contention
errors,
charging
the error
the
court
pleader
upon
part
the
the intention
disjunctively.
said:
There
upon
Kaskas
single assault
both
charge
to
a
charge
in para-
“Nor
the court’s
by the
persons
or
homicide of two
jointly
4,
that,
graph
told
jury
wherein the
are
same act or violation.
they
appellant, Rogers,
if
believe
and
timely
despite
ob-
court,
appellant’s
The
Dollar
an
upon
made
assault
and
Cozine
charged
position,
the State’s
jection and
them,
Hampton,
or either of
and
vio-
might
they
convict
jurors
that
Hampton,
to Cozine and
or
lence
either
they
beyond a reason-
if
found
them,
putting Cozine
malice afore-
that he had with
able doubt
them,
Hampton, or either of
in fear of
Anton David Kaska.
thought killed
or
bodily
etc.,
injury,
life and
in accordance
was
charge
jury
to
that the
court refused
with the authorities.
It
seem clear
would
acquit
to
unless
found
charges
an
the indictment
assault
and David Kaska.
had killed both Anton
upon
Hampton,
and the
both Cozine
words,
court submitted
In other
par-
of said
use of
both
violence toward
despite the
jury disjunctively
to
case
assault,
ties,
charges
joint
and thus
pleadings. No
homicide
conjunctive
Texas
in such
court could
case the
charge
has
involving
disjunctive
case
jury
appellant guilty,
find
instruct
been cited and I have found none.
upon
if an
committed
either
assault was
the court’s instruction to
where
was committed
the State
assault
State,
To
in and
believed Scott
support
46 Tex.Cr.R.
the indictment
with intent
cites the
upon
in and
type
John
to murder
fired
1904
305,
of submission
upon
charged
Chandler.
case of Scott
the first shot
Isom Chandler
S.W.
prosecution
950,
utilized
assault
There
an
at
if
23 S.W.
App.
Neely v.
State,
Davis v.
S.W. [1094]
[368]
them. Barton
them,
[490,]
370,
61 Tex.Cr.R.
798;
or
State,
violence
1095.”
Woods v.
S.W.
32 Tex.Cr.R. [370]
10 S.W.
Tex.Cr.R.
317,
State,
used toward either
108; Henley
13 A.L.R.
State,
135 S.W.
88 Tex.Cr.R.
26 Tex.
133;
147;
Chandler,
102 Tex.Cr.R.
Brown v.
Chandler or Isom
either John
conviction,
both,
him,
liquor
upheld. The
law violation
S.W.
at
to convict
aforethought, assess
malice
with
the conclusion
murder
his
1. The
rendered at
verdict
punishment
hearing
punishment
at death.”
therefor
reads:
“We,
jury, having
found
defend-
Turner, guilty
ant,
of the offense
Oscar
proof
instructing
was unwarranted in
the failure
was reversed for
find
guilty
the accused
the assault was
indictment
support
the averment
upon
complaining
either of
purchasers,
committed
joint
to three named
of a
sale
witnesses,
upon
or used
toward either of
judge
trial
violence
and the refusal of the
Court, however,
them.
refused to re-
acquittal must
an
request
*13
objection
verse since no
the
by Brown to
written
to
if the
was made
result
sale
pur-
charge
(see
was made
parties named
Article
V.A.C.
than all of the
less
C.P.,
36.14,
dissenting
V.A.C.C.P., 1965)
concurring
now Article
and
In the
chasers.
and the inhibition of the
to reverse
us now was
opinions
question
the
before
unless
error
charge
the
in the
was calcu-
thoroughly discussed.
rights
injure
lated to
the defendant’s
or
Morrow,
Judge
Concurring, Presiding
deprived
unless
appears
it
he had
Pate,
and
wrote:
quoting
Barton
after
from
impartial
a fair and
trial. See former
36.19,
666, V.A.C.C.P.,
now Article
no variance
practice,
need be
“In
there
V.A.C.C.P., 1965.
purchaser,
the
by reason
the
name
owner,
there
injured party.
If
the
or the
timely
In the case at bar
a
there was
knowledge
the
uncertainty
is
in
advance
objection.
direction
pleader touching the
State,
If
be argued
can
that Scott v.
upon the
take
the evidence will
does,
fact,
supra,
support
type
in
the
trial,
was
the assault
as to whether
case,
charge
in
one,
given
the instant
con-
its
more than
upon
committed
one or
viability may
seriously questioned.
tinued
be
joint
to
the owner was
or as
whether
expressly,
If not
been im-
it has at least
several,
or
purchaser was one
or
the
or
plicitly overruled.
more,
permits
the
that the indictment
law
state
and the
separate
in
be drawn
counts
did,
fact,
in
charge
If the indictment
one
any injury.
thereby
protected against
be
offense, then
the
are confronted with
we
rights, it is
state in its
To secure the
general
rule that the
is bound
the
State
the cer-
necessary
touching
that the law
indictment,
descriptive
in the
averments
agreement
the
tainty
and
of indictments
and
particular
rule that where
facts
proof
in the averment be abandoned
and
constituting
circumstances are set forth
case.
abrogated
particular
or
to meet the
descriptive
charged
identity of
offense
pleader
required only
use
It is
charge
the trial
limited in its
court is
sepa-
in
drawing
in
the indictment
care
specifically alleged.
those matters
Moore
counts,
that the court submit
rate
State,
145
v.
S.W.2d
Tex.Cr.R. phases of the
for decision those
For
the issue is determined
when
by the
supported
indictment which are
or informa-
by indictment
a criminal case
evidence.”
defendant, the
pleadings
tion and
changed
cannot be
joined and
issue is thus
Lattimore,
Dissenting,
lengthy
Judge
a
jury.
charge
the court’s
or limited
State, supra.
opinion cited
Scott
156 Tex.Cr.R.
Grooms
Layman
Tex.Cr.R.
Instruc-
Tex.Jur.2d,
229. See
S.W.2d
prosecution, the
robbery
a
S.W.2d
tions,
69, pp.
Sec.
ap-
under
count of
indictment
as-
pellant
charged
joint
was convicted
therefore,
mind,
my
is
question,
The
Humphries and
upon
sault
C.
Mrs. M.
B.
committed, but
J.
was
error
not whether
con-
Humphries.
charge authorized a
harmless or revers-
error
whether the
was
beyond
a rea-
viction if
believed
ible.
sonable doubt that
assault
made
was
opinion takes
his
upon
Judge Morrison
Humphries
B.
M.
C.
Mrs.
J.
charges one
Pate,
indictment
position that
Citing
Humphries
either
them.
between
no variance
and there was
this
court
Court concluded that the trial
offense
am also unaware
single act.
I
by a
both
killed
proof
since
such indictment
authority for
final conviction
any
bul-
fusillade
killed
one
Kaskas
acts
by separate
two murders committed
no
He finds
weapon.
lets
same
in the same indictment.
charged
disjunctive
in the court’s
error
reversible
Pate, Barton
overrule
and would
charge
Morrison
disagree
Judge
I
with both
do
contained
if those decisions
and Brown
Woodley
error
Judge
question
bearing
dicta
more than
that,
harmless error and
charge was
court’s
despite
position that
It
presented.
evidence, the verdict
supported by
of-
charging one
conjunctive pleading
applied to either murder.
fense,
proved the
need
the State
Indeed,
strong argument can be made
person
of one
sustain conviction
killing
in-
given
position.
harmless
for the harmless
*14
appellant
knowl-
gave the
actual
dictment
error.
his
so
the character of
accusation
edge of
bar,
at
I
In
of
facts
the case
view the
of
while
mislead
that
not have been
he could
however,
am,
with Pre-
agreement
in full
be able
and he will
preparing
defense
Woodley
the murder of
Judge
that
siding
to fur-
proceedings
bar
these
to advance
in
same
the
was not
one and the
Kaskas
law
same transaction.
prosecution
ther
for the
transaction,
or
“The Dual
act
offense. See
(5th
Culbertson,
F.2d 621
See
406
Nees
Offense,”
Baylor
of
20
Law
Meaning One
States,
923
Cir.); Gay
408 F.2d
v. United
Rev. 218.
(8th Cir.).
Putting
any question
duplicity
aside
of
so,
apparently
that
it
observed
Even
(the joinder of two or more distinct of
of
evidence the trial court
in
the
view
count),2
any question
in one
of
fenses
of the indictment
separated
allegations
21.24, V.A.C.C.P.,
of
crimes,
violation
Article
did not
into
substantive
but
two
prohibiting charging
of
than one
appellant guilty
more
require
to find the
fense in
same indictment with certain
guilty
in
event of a
only
of
one offense
3
exceptions
State,
(cf.
Tex.Cr.
Breeden
authorized
jurors
verdict.
105;
State,
App., 438 S.W.2d
Rose v.
Tex.
general
for a
verdict of
charge to vote
609;
Cr.App., 427 S.W.2d
Vannerson v.
beyond a
guilty
if
reasonable
believed
State, Tex.Cr.App.,
228),
408 S.W.2d
I
appellant
David
doubt the
murdered either
agree
Judge Woodley
further
with
toas
only
Supposing
or
Anton Kaska.
proper
pur
course that should have been
jurors
if
12
harmless
occurred
sued by the trial
when it
court
became
appellant guilty of the murder
found the
that both of
known
the Kaskas were not
if the
found the
jurors
David Kaska or
12
2.
murder of two
526, pp. 502, 505,
dictment which in one count
duplicity
549;
times. Rucker v.
being duplicitous
Under the of Article Sec. Constitution, Ann., others, Texas Vernon’s While seem academic to I 36.29,V.A.C.C.P., jurors all twelve cannot conclude the error is harmless. felony Surely case must reach a unanimous the State should not be allowed to legal death, conclusion in put order to render a ver- a man regardless of the enor- mity dict.4 of the crime charged, unless it is clearly jurors established that all 12 charge given Under case at bar offense, agreed guilty that he is of an even split could have in its conclusion if it is substantively specified one and decision and still have returned seem- the indictment. It will a matter of be ingly general unanimous ex- verdict. For small moment to this if and when ample, six be- jurors could have believed placed he is in the electric chair to told yond a reasonable doubt that the jurors don’t whether 12 “We know found murdered David Edward Kaska malice with you guilty murdering either Anton or aforethought charged but could have Kaska, worry, you David but don’t are not *15 entertained a reasonable doubt as to wheth- likely to be re-tried for the murder of er the murdered Kaska as Anton either.” charged. charge Under court’s these respectfully I dissent. jurors six would have been authorized and justified joining general in the verdict jurors was The other six returned. beyond
could have believed a reasonable appellant, doubt that afore- with malice thought, charged murdered Kaska as Anton
or could have entertained a reasonable doubt as to whether killed David jurors Kaska. These six would have also VALDEZ, Appellant, Emilio been authorized justified under the charge given join general verdict Appellee. Texas, STATE returned. It should further remembered No. 43334. that the court also submitted the issue of murder without malice. these cir- Under Appeals Criminal of Texas. cumstances, impossible it is to tell whether Dec. 1970. jurors unanimously agreed guilty murdering with Rehearing Denied Feb. 1971. aforethought or Anton malice either David Certainly charge Kaska. was calcu-
lated to mislead and confuse the alone, being this reason sufficient gravity, a reversal. would authorize See Instructions, p. Tex.Jur.2d, Sec. authority say
Does this Court have the as a matter of law there is no reason-
able basis assume the would 36.29, supra, provide sitting does disabled from before the jury. a verdict be returned eleven of the court is read to the Such jurors juror presented. where one dies becomes situation not here