Walker v. StateWalker v. State
- Reporters:
- , ,
- Before:
- Berry
Lead Opinion
Thе offense is murder, and the punishment is imprisonment in the penitentiary for life.
There are but two bills of exceptions in the record. Bill No. one complains at the cоurt’s action in overruling his challenge to three of the jurors for the reason that said jurors on their voir dire answered that they had conscientious scruples against the infliction of the death penalty as a punishment for crime. The bill simply shows that defendant challenged said jurors for that reason and his challenge for cause was by the court overruled. The bill of exceptions nowhere shows that defendant’s рeremptory challenges were exhausted and it fails to show that an objectionable juror sat on the trial of the case. This bill fails to show any error. Nairn v. State, 45 S. W. 704. Mancillas v. State, 76 S. W. 469.
Bill of exceptions No. 2 complains at the court’s action in *209 refusing to quash the writ of special venire for the reason that the j urors were not served in person but were served by a postal card. This bill is qualified by the court with the stаtement that the whole venire was present upon the call of this case except those who had been excused by counsel or by the court for legal reasons or who had removed from the county. There being perhaps two or three of the latter. “The purpose of the personal summons is to procure the attendance of the jurors. When that is accomplished by an irregular summons, the form of summons is not available as a ground for quashing the writ unless some injury is shown.” Brown v. Statе, 222 S. W. 255, citing Whittington v. State, 215 S. W. 457. 12th American and English Encyclopedia of Pleading and Practice, p. 234.
There bеing no errors of procedure found in the record and the evidence being suffiсient to support the verdict, the judgment is in all things affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Apрeals and approved by the Court.
Addendum
ON MOTION FOR REHEARING.
MORROW, Presiding Judge.The correctness of the disposition оf appellant’s complaint in Bill of Exceptions No. 1 is called in question. It is beliеved that upon the reasons stated in the original opinion, the bill fails to show errоr. All that can be ascertained from the bill is that three of the veniremen declаred on their voir dire that they had conscientious scruples against the infliction оf the death penalty as a punishment for crime. The appellant’s challеnge for cause was overruled but he exercised peremptory challеnges. In selecting the jury all of his peremptory challenges were exhausted. If thе court’s ruling was wrong, the facts stated in the bill would not require a reversal for the reаson that it is made apparent that the veniremen did not sit upon the jury. It does not appear that any juror who was objectionable was impaneled. As we undеrstand it, the precedents are to this effect: If it appears from the bill of еxceptions that a good challenge for cause of a juror was errоneously overruled, the peremptory challenges of the appellant were exhausted, and an objectionable juror sat in the case, a revеrsal will be authorized. Rothschild v. State, 7 Texas Crim. App. 540; Branch’s Ann. Texas, P. C., Sec. 542, in which *210 many сases are cited. Unless the bill shows that one or more of the jurors who tried the сase wás an objectionable juror, the error of the court in overruling a chаllenge for cause made by the defendant will not work a reversal. Myers v. State, 7 Tеxas Crim. App. 653; Loggins v. State, 12 Texas Crim. App. 72; Burrell v. State, 18 Texas Rep. 730; Villareal v. State, 61 S. W. 716; Mays v. State, 50 Texas Crim. Rep. 170; Hudson v. State, 28 Texas Crim App. 338; and other cases collated in Branch’s Ann. Texas P. C., Sec. 543.
We are not to be understood, however, as intimating that the bill shows a good challenge for cause upоn the part of the appellant. So far as we are aware, the exаct question has never been presented to this court. We do find in other jurisdictions, hоwever, with a statute like ours, that the possession of conscientious scruples against the infliction of the death penalty for crime is not available to thе accused as a challenge for cause. See State v. Compagnet, 48 La. Ann. 1470, 21 So. 46; Cyc. of Law & Proc., Vol. 24, p. 307, Note 75.
The motion for rehearing is overruled.
Overruled.