Hudson v. State

13 S.W. 388, 28 Tex. Ct. App. 323, 1890 Tex. Crim. App. LEXIS 1

• Court: Court of Appeals of Texas
• Decided: January 22, 1890
• Docket: No. 2775
• Status: Published

Opinion

White, Presiding Judge.

Several hills of exception appear of record saved to the rulings of the court with reference to the impaneling of a jury for the trial of the case.

Sixty names had been ordered drawn, selected, and the parties summoned as special veniremen. When the case was called for trial on the 27th of September, the State announced ready for trial, and defendant asked and was granted time to prepare his application for a continuance. Another case, viz., The State v. Allcorn, charged with a felony, was called, and its trial proceeded with to fill up the interim. The jury impaneled in the Allcorn case were selected from the list of jurors who had been regularly drawn and selected for that week of the term. As soon as the Allcorn case had been submitted to the jury, and they had retired to consider of their verdict, appellants case was again called, and his application for continuance having been overruled, the trial was ordered to be proceeded with. Of the special venire which had been summoned,.it was ascertained when their names were called that five of the said veniremen were absent. Defendant immediately demanded an attachment for each of said absentees, and asked a postponement of the trial until the service and return of said process. This request was granted in so far as the issuance of the attachments was concerned, but the court refused to postpone the trial, and the remaining names upon said special venire were ordered to be called and passed upon until the same was exhausted. Meantime two of the five absentees were brought in under the attachments issued, and they were also passed upon. When the special venire was exhausted the defendant again moved the court to postpone the trial until the other three absentees who had been summoned upon said venire could be attached and brought in under the process which he had sued out for them, or until the said process had been returned, the sheriff stating that said attachments had not been executed for want of time. This motion was refused by the court, and the court directed the call of the regular jury for the week, consisting of twenty-three names, the same having been regularly drawn by the clerk and a list thereof furnished the defendant, and ordered the further completion of the jury to be made from said list, which was done, over objections of defendant. This was the proper practice. Cahn v. The State, 27 Texas Ct. App., 709.

When a special venire, after being summoned, is called in the trial of a capital case, and any person or persons who shall have been summoned fail to appear and answer to his or their names, either party may have attachments issued for such absentee or absentees to have him or them brought forthwith before the court. Code Crim. Proc., art. 618. If the attachment is not demanded for the absentee at this time, the party will be deemed to have waived his right to the same, and can not be heard afterwards to complain.

Again, it is provided that, “ in selecting the jury from the persons summoned, the names of such persons shall be called in the order in'which they appear upon the list furnished the defendant, and each juror shall be tried and passed upon separately, and a person who has been summoned but is not present may, upon his appearance before the jury is completed', be tried as to his qualifications and impaneled as a juror, unless challenged; but no cause shall be unreasonably delayed on account of the absence of such person." Code Crim. Proc., art. 640; Willson’s Crim. Stats., sec. 2287; Cahn v. The State, 27 Texas Ct. App., 709.

Under this statute before the jury is complete any of the persons summoned who were absent when the venire was first called, whether they appear with or without having been brought under attachment, may be tried and passed upon as jurors. But in no case is the trial to be unreasonably delayed on account of the absence of any of the persons summoned on said special venire; “ and though, ” as was said in Thuston v. The State, 18 Texas Court of Appeals, 26, “an attachment might be out for some of the original veniremen, that should not unreasonably delay the completion of the jury out of new talesmen summoned."

In this case the defendant had availed himself of his right to attachments for the absentees at the proper time, and he was entitled to assert his right to have them in court to be passed upon, provided it would not cause unreasonable delay in the trial. How, what are the facts on the question of the reasonableness of the delay? At 2 o’clock on the 27th the attachments were ordered issued and placed in the hands of an officer for service. On the morning of the 28th the sheriff reported that the officer having the process had not had time to execute the process, and the court ordered the completion of the jury out of the names drawn by the clerk from the lists of jurymen of the term, and the jury was completed by noon, the absentees not having been brought in. So it appears that some eighteen or twenty hours elapsed between the issuance of the attachments and the completion of the jury. It was a matter within the discretion of the court to determine the reasonableness of the delay. Do the facts show that the court abused its discretion, or that defendant has suffered injury on account of the court’s action? We do not think the facts show an abuse of discretion. It is true that defendant says he exhausted his peremptory challenges in the selection of the jury, and that an objectionable juror was put upon him and, notwithstanding his challenge, sat upon his trial. He does not show wherein said juror was objectionable or the reasons of his objection to him, nor that he was not a fair and impartial juror. An “ objectionable ” juror, in the sense in which the term is used in this connection, means one against whom such cause for challenge exists as would likely affect his competency or his impartíality in the trial. Without some such showing it is idle simply to say that. a juror is objectionable. Having exhausted his peremptory challenges he was not under the circumstances here presented entitled to exercise a further challenge of this character. Hoggins v. The State, 12 Texas Ct. App., 65.

After the special venire was exhausted and resort was had to the list of the twenty-three jurymen drawn by the clerk from the regular jury for the week, it was found, when their names were reached, that several of these jurymen were upon the Allcorn jury and were considering of their verdict in that case. Defendant moved for a delay and postponement until said jurors could be brought in and passed upon in the order in which their names appeared upon the list, which motion the court refused, and defendant saved his exception. In certifying this bill of exceptions the learned trial judge says: “ The call of the remainder of the panel was proceeded with and the jurors passed upon, and the Allcorn jury being unable to agree was .discharged, and the jurors were called and passed on in this case before talesmen were ordered.” There is no substantial merit in the bill of exceptions reserved to this ruling. The point here made is not analogous to the questions as made in Bates v. The State, 19 Texas, 123, and Thuston v. State, 18 Texas Court of Appeals, 26. These jurors were not summoned upon the special venire in this case at the time they were impaneled in Allcorn’s case, and besides this, appellant did in fact have the privilege of passing upon them as jurors after they had been selected and summoned in this case. We can not see ;that he has any ground of complaint in the matter.

Another exception of defendant growing out of the organization of the jury arose fi-om the following facts: The fifty-third name summoned on the special venire, as shown by the sheriff’s return thereon and by the copy served upon the defendant, was C. F. Sanders. In response to the call of this name one C. F. Sander appeared and answered as the party who had actually been summoned. Defendant moved the court to stand said Sander aside for variance in the names, which motion was overruled, and defendant, over his objections, was compelled to exhaust a peremptory challenge upon said juror. “ When a juror is misnamed in the copy of the special venire served on the defendant, it is the proper practice to stand him aside.” Thompson v. The State, 19 Texas Ct. App., 594; Swofford v. The State, 3 Texas Ct. App., 77; Bowen v. The State, 3 Texas Ct. App., 617; 72 Ala., 164. It was error to refuse to stand the juror aside, but the error becomes harmless in view of the fact that the juror did not sit upon the case, the defendant having rid himself of him by a peremptory challenge, and no objectionable juror having set upon the case.

The defendant assigns as error the admission of evidence over his objection, and the improper remarks of the district attorney made in the presence and hearing of the jury, as shown by his several bills of exception relating thereto, as follows:

1. In admitting the testimony of B. 0. Anderson, justice of the peace, as to complaints made by the deceased against the defendant; and in admitting the alleged examining trial record in impeachment of the witness Mary Hudson.

A In admitting in evidence the indictment in cause Ho. 3351, The State of Texas v. Alfred Hudson, charged with the murder of J. D. Brackens by poison, and a subpoena for Ed. Brackens as a witness therein.

3. In permitting the district attorney to state in the presence and hearing of the jury that he could strengthen the State’s case by the testimony of an absent witness;-to argue to the jury in his closing speech his belief in the defendant’s guilt, and that he was also guilty of poisoning J. D. Brackens, a child of the deceased, as charged in said indictment in cause Ho. 3351.

4. Even if said evidence should be held admissible, still the court erred in failing to instruct the jury as to the only purposes for which the same could be considered by them, viz., in determining the credibility of the witness, and as a circumstance tending to show motive in the defendant for the homicide; and in failing to instruct the jury to disregard the improper remarks of the district attorney.

Defendant himself, on cross-examination of Anderson, the justice of the peace, drew out from the said witness matters relating to the defendant’s attempts to prosecute deceased before said justice, and in response the State was permitted to prove by said witness that deceased had previously instituted prosecutions before him against defendant. Even if said evidence was collateral, irrelevant, and immaterial, the defendant should not be heard to complain, he having provoked or caused its introduction.

Hor did the court err in permitting the prosecution to impeach the wife of defendant by reading her contradictory statements made at the examining trial. It was not objected that the impeachment was upon immaterial and collateral matters, nor that the papers in the examining trial and the signature of the witness had not been proved. There appears to have been no question made at the time as to the fact that the paper read from was the evidence duly and legally taken at the examining trial.

It was not error to permit the State to read in evidence the indictment-against this defendant charging him with having murdered by poison one-J. D. Brackens, the child of deceased, and which indictment was pending. This indictment, together with the fact, otherwise proved, that deceased had accused defendant and others of poisoning his child, and that-he was prosecuting him for it, were circumstances tending to establish, and were legitimate for the jury to consider in determining defendant’s. motive in. killing deceased. Kunde v. The State, 22 Texas Ct. App., 65, and authorities cited. This evidence did not prove or tend to prove an extraneous crime. Such evidence being legitimate and admissible to prove a main issue iu the case, to-wit, defendant’s motive and malice in the perpetration of the murder, it was not obligatory upon the court in its charge to limit and restrict the purposes for which the evidence was admitted. The rule as to restriction or limitation does not obtain with regard to evidence proving directly the main issue involved in the trial. Davidson v. The State, 22 Texas Ct. App., 373.

It is not shown that defendant was in any manner injured or prejudiced by the remark of the district attorney made in the presence and hearing of the jury, and which is complained of by the defendant. If the evidence is amply sufficient to sustain the verdict and judgment (which is the case in our opinion) without the testimony of the absent witness Carr, whose testimony the district attorney said would make the case stronger if the court would hold the case open until he could produce it, we can not possibly see how such a remark could in any manner prove injurious.

Quite a number of objections are urged to the charge of the court as given to the jury, and exceptions were reserved to the refusal of the court to give the several special instructions requested for defendant. We are of opinion that none of these exceptions are maintainable.

Upon self-defense it is objected that the charge did not instruct the jury that the defendant had the right to act upon the ' appearances of danger, and that it was not necessary that the danger should be real. It is also objected that the court wholly omitted to instruct the jury that the defendant was not bound to retreat. The defendant testified in his own behalf. He testified that he was shot at and that he retreated; that he fired as he retreated, and that if he killed deceased, he killed him under these circumstances. According to this statement of defendant his danger was not apparent but real danger, and appearances of danger was not an issue in the case. He also testifies that he did retreat. If this was his own tale as to the matter, how could he be injured by the omission to instruct the jury that he was not bound to do what he did do to save himself? If he had not retreated, then he might reasonably have claimed that the jury should have been instructed that he was not bound, under our law, to retreat before he could justify a killing on the ground of self-defense against an unlawful attack upon his person likely to produce death or serious bodily injury. Whether he retreated or not was not an issue in the case as made by his own testimony, and there were no other eye-witnesses to the homicide who testified on the trial.

We are of opinion the charge presented sufficiently the law applicable to the legitmate issues in the case, and that the court did not err in refusing defendant’s special requested instructions.

We have found no reversible error in the record of this case as it is-presented to us on this appeal, and the judgment is therefore in all things-affirmed.

Affirmed.

Hurt, J,, absent.