Belcher v. State

258 S.W. 815, 96 Tex. Crim. 561, 1924 Tex. Crim. App. LEXIS 130

• Court: Court of Criminal Appeals of Texas
• Decided: January 16, 1924
• Docket: No. 8092.
• Status: Published

Opinions

MORROW, Presiding Judge.

The offense is the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

The evidence supports the verdict. The indictment is like that held sufficient in Russell v. State, 88 Texas Crim. Rep., 582; Stringer v. State, 92 Texas Crim. Rep., 46.

The statute prohibiting the manufacture of intoxicating liquor, except for certain named purposes embraced in Article 588^4, P. C., is not rendered invalid by the United States statute upon the same subject. Ex parte Gilmore, 88 Texas Crim. Rep., 529.

Appellant presented a bill of exceptions to the trial judge, - complaining that he had been denied the privilege of ascertaining from the members of the venire whether they were members of the order known as the Ku Klux Klan. The judge made upon it this indorsement :

■ “The Court does not certify that the above proceedings were had, nor does the Court, certify that any of the matters alleged therein are true, nor that there was any basis for supposing them to be true.”

A peremptory challenge is defined as “a challenge made to a juror without assigning any reason therefor.” Article 609, G. C. P. The right to exercise a peremptory challenge confers upon the accused the right to “give effect to Ms natural impulse to eliminate from the jury-list, not only persons who are rendered incompetent for some of the disqualifying causes named in the statute, but persons who, by reason of politics, religion, environment, association or appearance, or by reason of the want of information with reference to them, the accused may object to their service upon the jury to which the disposition of his life or liberty is submitted.” Kerley v. State, 89 Texas Crim. Rep., 199, and authorities cited. As a predicate for such action, the accused may, by proper interrogation, elicit facts which will enable him to intelligently exercise his right of challenge. ‘: This must, of course, within reasonable limits, be determined under the facts of the particular case by the trial judge. His discretion in the matter, however, has limitations, and, when abused, will be corrected upon appeal.” Reich v. State, 94 Texas Crim. Rep., 449, 251 S. W. Rep., 1073, and cases there cited. In the present case, however, the record brings forward for review no rulings of the trial court in conflict with the statute and practice mentioned. It appears only that a bill of exceptions was presented and that the court, for the reasons stated, did not allow it. The reasons given in the certificate are certainly sufficient to justify such action. Prom the certificate it appears that the proceedings recited in the bill did not take place. Conceding this to be true, there was no occasion for the judge to file a bill of exceptions in lieu of the one presented. If the appellant regarded the certificate as untrue, a bystander’s bill was available to him. The reason and authorities in the opinion of Judge Lattimore, speaking for this court in Wilson’s case, 87 Texas Crim. Rep., 629, are applicable to the present case. See also Shaw v. State, 89 Texas Crim. Rep., 205, 229 S. W. Rep., 511.

The judgment is affirmed.

A ¡firmed.