Bradley v. State

256 S.W. 292, 96 Tex. Crim. 81, 1923 Tex. Crim. App. LEXIS 784

• Court: Court of Criminal Appeals of Texas
• Decided: October 24, 1923
• Docket: No. 8008.
• Status: Published

Opinions

LATTIMORE, Judge.

— Appellant Appellant was convicted in the District Court of Limestone County of murder, and his punishment fixed at twenty years in the penitentiary.

Without stating the facts at length they sufficiently show that on the occasion charged in the indictment appellant shot and killed Elisha Downie. The eyewitnesses all testified that Downie was trying to. hide behind another man at the time, and that the shooting was with very little, if any, provocation or excuse.

Appellant filed a lengthy motion to quash the special venire which - was overruled and the bill of exceptions taken to this action of the court is so qualified by the learned trial judge as to render the objections made by appellant of no avail. No new matters are presented and we deem it unnecessary to set out the contentions at length.

It is not required that the accused be served with a list of talesmen summoned to complete the jury, after a special venire is exhausted, and that he be given one day before being called on to pass on such talesmen. Dow v. State, 31 Texas Crim. Rep., 278; Poster v. State, 38 Texas Crim. Rep., 525.

This court has never held that it was reversible error to permit the members of the panel not yet examined to sit in the courtroom while the respective jurors were being tested on their voir dire. In the instant ease the bill of exceptions does not show that any request was made for the retirement of those not yet called, nor is it made to appear that anything transpired during the examination of said jurors which could have affected the fairness of appellant’s trial.

Appellant’s bill of exceptions No. 1 complains of the refusal of his application for continuance. It appears that he was indicted September 14, 1922, and was then in jail where he remained until the case was called for trial January 24, 1923, and that no application for the issuance of process for any of his witnesses was made until the latter date. This was not diligence. Cox v. State, 43 Texas, 101; Holmes v. State, 38 Texas Crim. Rep., 370.

No error appearing in the record, the judgment will be affirmed.

Affirmed.