44 Tex. 34 | Tex. | 1875
The appellant, Gus Williams, having been convicted of theft from a storehouse, moved for a new trial on two grounds:
1. Because the verdict of the jury is contrary to and not responsive to the charge of the court.
2. Because the verdict of the jury is contrary to law and the evidence.
The motion was overruled, and the defendant excepted and gave notice of an appeal.
The defendant- applied for a continuance of the case on the ground that he could not go safely to trial for want of
It further appears from defendant’s bill of exceptions that, after having exhausted his challenges to individual jurors, he then challenged the array, on the grounds stated in his motion, to wit:
1. “ The defendant, being a colored man, of African descent, charged with a felony, is placed upon trial before a jury composed exclusively of white men, whilst he is entitled to a fair and impartial trial by a jury of his peers; that there being a natural as well as a social antipathy between the races in this country, it is believed that defendant cannot obtain a fair and impartial trial.”
2. “ Said jury is not selected without regard to race, color, or previous condition of servitude, as required by the Constitution and laws of the United States and of this State.”
The motion was overruled and the defendant excepted.
It does not appear that the defendant was deprived of any right or- privilege secured by the Constitution and laws to other citizens. He exhausted his challenges to individual jurors, as any other defendant may do, and after doing so his right to challenge the array must be
A challenge is either to the array or to a single juror. (Paschal’s Dig., Code of Procedure, art. 3032.)
The grounds set out in the motion are not causes of challenge to the array.
It is not charged that the officer summoning the jury was guilty of any improper conduct. The code provides that the defendant may challenge the array for the following causes only: That the officer summoning the jury has acted corruptly, and has wilfully summoned persons upon the jury known to be prejudiced against the defendant, and with a view to cause him to be convicted. (Paschal’s Dig., art. 3034.)
A defendant is not limited in the number of challenges for cause to individual jurors on any of the grounds specified in the statute, as that the juror has a prejudice against the defendant, or that he is disqualified for some other reason which is a cause of challenge.
In testing the qualifications of a juror the code provides that the juror shall himself be sworn to answer questions, and that any other proof may be heard touching the subject.
A defendant is not denied equal rights with other citizens when he is required to observe a uniform rule of procedure, general to all others in the administration of the criminal laws of the State.
The defendant’s objection was to the array, and not to individual jurors, who were found on examination or other evidence to be incapable or unfit to try the case,by reason of one or more of the specified grounds of disqualification under the law.
The existence of certain causes of challenge was assumed, and the court was then asked to set aside the whole jury for these causes when they were not grounds of challenge.
A bias or prejudice in favor of or against the defendant,
Though we have no reason to believe that the defendant was not tried by an impartial jury, we are of opinion that the judgment should be reversed for a different reason.
J. D. Barron, the State’s witness, and the only witness examined on the trial, testified that the defendant came into the storehouse of the witness and his brother, J. Barron, at the town of Troup, and wanted to buy some pistol cartridges on a credit. The money charged to have been stolen by the defendant is described in the indictment as one five-dollar bill, one two-dollar bill, and a one-dollar bill, United States currency.
The witness testified that the two-dollar bill and the one-dollar bill were rolled up in the five-dollar bill, and that he had carried the last-named bill in his pocket for several days previously.
The other bills were received from a customer at his storehouse on the day, and only a short time before, the bills were stolen. It is not clear from the evidence whether the defendant was present at the time, the bills were received or not. The bills were laid in a segar box, on a shelf in the house. The witness having occasion to leave his storehouse and go across the street on some business, left his house in his absence in charge of Mr.-, the name not being given, who was sitting in the door of the storehouse. The defendant at this time was in the storehouse, sitting on a nail keg. When the witness returned to his storehouse after a short absence the bills were missing. Upon inquiry he was informed by Mr. Moore that the defendant had been trading with him and had paid him in silver. The defendant had also paid Mr. Heath a five-
This evidence was not sufficient to support a conviction for theft. The bills were not identified as the bills described in the indictment, or currency bills of any kind, from any knowledge the witness had of such bills. He did not know a bill of one denomination from another, (except fractional currency,) unless he was told what it was. The persons who were referred to by the witness were not called to testify in the case on the trial as might have been done. This may perhaps be done on another trial.
On these grounds we are of opinion that the motion for a new trial should have been granted. The judgment is therefore reversed.
Reversed and remanded.