94 S.W.2d 430 | Tex. Crim. App. | 1935
Lead Opinion
The appellant was tried and convicted of the offense of murder, and his punishment was assessed at death.
It appears from the record that about the 6th day of February, A.D. 1934, the appellant, Bernard LaCoume and Roy Cusack stole an automobile and went from the city of Galveston to Angelina County, where, on the night of February 9, 1934, they robbed and killed Charley Cansler by striking and beating him with a pistol and some blunt instrument, a better *449 description of which was to the grand jurors unknown, and by packing tightly into the mouth of said Charley Cansler a piece of cloth. The appellant and Cusack were subsequently arrested in the city of Galveston and upon being questioned the appellant informed the officers where the safe which had been taken from the home of deceased was buried in a garage. Upon receiving such information from the appellant, the officers proceeded to the garage and recovered the safe and some valuable papers belonging to deceased. The appellant, Cusack and LaCoume were seen at Corrigan in Polk County on February 8, 1934, where they purchased two gallons of gasoline. On the night of February 8th the same three parties were seen at the filling station of Dave Cockran in the town of Lufkin, Angelina County, where they traded the wheel and rim of the spare which was on the rear of the Chevrolet sedan to the filling station for some gasoline. The appellant had lived in the community where deceased lived and was thoroughly familiar with the surroundings of deceased's home.
By bill of exception the appellant complains of the action of the trial court in declining to grant his request to discharge the juror M. F. Cochran on the ground that before the jury was completed he learned that said juror was related by marriage to J. J. Collins, private prosecutor in the case, within the prohibited degree, that is, that the juror was a first cousin of the wife of the said J. J. Collins, private prosecutor. The district attorney objected to the discharge of the juror and the court sustained his objection, to which appellant excepted and by proper bill of exception brings the matter before this court for review.
Art. 616, C. C. P., reads as follows: "A challenge for cause is an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury." Sub. 10 of said article provides that where a juror is related within the 3rd degree of consanguinity or affinity to the person injured by the commission of the offense, or to the private prosecutor, if there be one, such juror is subject to challenge for cause. It appears from the bill of exception that if the relationship between the juror and the private prosecutor had been known to the appellant or his counsel before the juror was accepted, he would have availed himself of his legal right to challenge said juror for cause because immediately upon the matter being brought to his attention, and before the jury was completed and finally sworn, he requested that the juror be discharged, which the court declined to do. It occurs to us that *450 under the circumstances the court erred in not complying with appellant's request. What prompted the legislature to enact Sub. 10, of Art. 616, C. C. P., making it a legal ground to challenge a juror for cause who was related within the third degree of consanguinity or affinity to the person injured by the commission of the offense, or to the private prosecutor, if there be one? Obviously upon the presumption that such relative of the injured person or the private prosecutor was biased in favor of the party offended or prejudiced against the offender, and therefore presumptively not an impartial juror. Sec. 10 of Art. 1 of the Bill of Rights (Const.) provides that the accused shall have a speedy public trial by an impartial jury. It is also the policy of the law that the trial shall be alike fair and impartial to the accused and the State. The greater and more horrible the crime, the greater and more imperative the necessity that these safeguards shall be constantly looked to and kept in mind. In such cases when the popular mind is inflamed and popular indignation becomes tense and runs high, it is the part of a fearless and manly judiciary to uphold the standard of the law and to vindicate its majesty and integrity regardless of all consequences. When the storm of public indignation has abated and the mind has recovered its equilibrium so that it may calmly and sedately deliberate upon the consequences of hasty action under disturbed conditions, it will commend the courage of a judiciary in upholding the majesty of the law.
It occurs to us that if the trial court had seriously considered the appellant's request and had examined the statutes hereinabove referred to, he no doubt would have complied with the appellant's request at that stage of the trial and discharged the juror.
In support of the views herein expressed we refer to the following authorities: Evans v. State, 6 Texas App., 513; Roberts v. State, 30 Texas App., 291,
For the error pointed out, the judgment of the trial court is reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Concurrence Opinion
Article 1, sec. 10 of the Constitution of Texas guarantees to one accused of crime a speedy, public trial by an impartial jury. An impartial jury "means that the jury must be not partial, not favoring one party more than another, unprejudiced, disinterested, equitable and just, and that the merits of the case shall not be prejudged." Duncan v. State,
To impute to the Legislature the intent to provide a challenge for cause to relatives of counsel privately employed to assist in the prosecution is to say that said body deemed such relatives to be ipso facto partial jurors, whereas relatives of *455 counsel for the accused and of the district and county attorney were thought to be impartial jurors, notwithstanding the relationship. Stated in another way, if the term "private prosecutor" as employed in the statute, means counsel privately employed to assist in the prosecution, it necessarily follows that we must lay at the door of the Legislature the charge of promulgating classifications in the absence of reasonable distinctions separating one class from the others. As far as the impartiality of jurors is concerned, it can not be said that the relatives of the district and county attorney and of the attorneys employed by the accused are not in the same attitude as relatives of counsel privately employed to assist in the prosecution. One class can not be held to have more or less interest in the result of the prosecution than the other. In this connection, it is observed that at the time of the enactment of Art. 616, supra, the district and county attorneys of this state depended for their compensation upon convictions.
When Art. 616, supra, was enacted the term "private prosecutor" had a well-defined meaning in the judicial precedents. We quote from 26 Texas Jur., 741, as follows: "A private prosecutor is one who prefers an accusation against a party whom he suspects to be guilty." See Heacock v. State, 13 Texas App., 97; Bouvier's Law Dictionary (Rawle's 3d Rev.), Vol. 3, p. 2753; 6 Words and Phrases, p. 5578; Sampson v. State,
In the State of Alabama it is provided by statute that in criminal cases one connected by consanguinity within the ninth degree or affinity in the fifth degree with either the defendant or with the prosecutor or person alleged to be injured is subject to challenge for cause. Notwithstanding the statute uses the term "prosecutor" it was held in Washington v. State,
I am unable to reach the conclusion that it was the intention of the Legislature to include in the term "private prosecutor" an attorney privately employed to assist in the prosecution. I therefore concur in the opinion granting the State's motion for rehearing and ordering an affirmance of the judgment. *456
Addendum
The State moves for rehearing. We reversed the case solely because of the refusal of the trial court to allow the defense to challenge for cause, juror Cochran. From the record it appears that after nine jurors had *451 been accepted and sworn as jurors, — this being a capital case, — the defense informed the court that they had just learned that Mr. Cochran, already on the jury, was related within the third degree to Mr. Collins, private prosecutor, employed to assist the State in the prosecution, and that under subdivision 10, Art. 616, C. C. P., which lays down the rule that one related within the third degree of consanguinity or affinity to the person injured by the commission of the offense, or to the private prosecutor, if there be one, Mr. Cochran would be subject to challenge for cause, — and they wished now to challenge said juror for said cause. The court refused to let appellant challenge Mr. Cochran, who sat as a juror upon the trial of the case.
Upon the hearing of the motion for new trial seven jurors were used as witnesses, and none of them were asked any questions as to the attitude or activity of Mr. Cochran on the jury; nor was there effort otherwise made to show that he was not fair and impartial throughout. Mr. Collins testified on the hearing of the motion for new trial that Mr. Cochran was a cousin of the wife of witness, and that no question was asked Mr. Cochran on his voir dire examination concerning such relationship, which relationship Mr. Collins said was well known throughout the county, both men having lived there all their lives.
What is now Subdivision 10, Art. 616, C. C. P., was first enacted in 1857, in the same language now used, and it has been reenacted without change in each codification of our Code of Criminal Procedure since. That the term "private prosecutor" was then defined by law dictionaries, standard law writers, and the courts of last resort in most of the states of our Union, — as the one who instigates the prosecution, who files the complaint, is without dispute, and it is clear that such was the definition of said term then in common use. See Bouvier's Law Dictionary; Ruling Case Law, Vol. 22, p. 9; Cyc., Vol. 32, p. 361; Corpus Juris, Vol. 50, p. 371; State v. Millain,
It is contended, however, in opposition to the State's motion for rehearing herein, that in some instances this court has referred to the attorney employed to assist the State as private prosecutor, or private prosecution. The cases referred to on this point are Crow v. State, 89 Tex.Crim. Rep.; Todd v. State, 93 Tex.Crim. Rep.; Vineyard v. State,
We have mentioned these in order to show that in no one of the cases, wherein such casual expression was used, was same pertinent to any issue in the case. Apparently the object *453 of the contention last mentioned would be to claim that the trial court herein should have known of these casual expressions and been governed by them in his ruling. Such contention is wholly without merit. As observed, in none of said cases was there any issue before the court as to whether the party referred to as special prosecution, private, prosecutor, etc., was such in law or in contemplation of any statute, and it would not be claimed for a moment that any construction of the term as used in Art. 616, C. C. P., was before the court in any of said cases. It is elementary and announced by all courts and law writers, that precedents consist of the decisions of courts of last resort upon the substantive issues before the court, which are considered by the court, and decided by the court as such. Immaterial descriptives which do not affect the question considered, or the result reached, have no force as precedents. It has been well said that a statement of law becomes a precedent, not because it emanates from a wise and learned man, but because it is laid down by a judge, in his office as a judge, and speaking to a question brought before him as a judge. As said by the Supreme Court of Tennessee, in L. N. Ry. Co. v. Davidson County Court, 1 Sneed, 636:
"It is then the conclusion only, and not the process by which it is reached, — which is the opinion of the court, and authority in other cases. The law is thus far settled, but no farther. The reasoning adopted, the analogies and illustrations presented, in real and supposed cases, in an opinion, may be used as argument in other cases, but not as authority. In these the whole court may concur, or they may not."
If the learned trial judge herein, — when called upon in the exercise of his discretion to pass upon the right of appellant to challenge Mr. Cochran for the cause mentioned, after he had been accepted without any investigation or examination, and had been sworn as a juror to try the case, — found the definition of the term "private prosecutor" laid down in the law dictionaries, and by text writers, and decisions of courts of last resort of all ascertainable jurisdictions, to be all in accord with the definition first above mentioned, — it would seem idle to argue that he should have known of, much less have accepted as precedent to the contrary, the instances of the use of immaterial descriptives in the cases last mentioned. No citator, or digester of opinions, or commentator thereon, would think for a moment of citing or collating as precedents casual expressions in opinions on points not material in the decision of the case wherein used, and certainly neither this nor any other *454 court of last resort has ever undertaken to overturn a settled law upon no better authority than a half dozen loose expressions in opinions of members of the court.
Appellant made no defense to what appears to have been a planned killing of an old man for the purpose of robbery. No testimony was offered in behalf of the accused. All other questions raised on this appeal have been considered, and are not deemed to present error.
Being of opinion that we erred in our reversal, the State's motion for rehearing is granted, the judgment of reversal is set aside, and the judgment will now be affirmed.
Affirmed.
Addendum
In his motion for rehearing appellant brings forward no new argument or authority. The case was very carefully considered on the original hearing, and the record has been re-examined in the light of the appellant's motion for rehearing.
The motion for rehearing is overruled.
Overruled.
