Kelly v. State

Court of Appeals of Texas

Kelly v. State

13 Tex. Ct. App. 158, 1882 Tex. Crim. App. LEXIS 198

CourtCourt of Appeals of Texas

DecidedNovember 11, 1882

DocketNo. 1438

StatusPublished

This text of 13 Tex. Ct. App. 158 (Kelly v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kelly v. State, 13 Tex. Ct. App. 158, 1882 Tex. Crim. App. LEXIS 198 (Tex. Ct. App. 1882).

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Opinion

Willson, J.

The record in this case fails to show that the jurors who tried the case were sworn. Repeated decisions of the Supreme Court of this State, and of this court, declare such an omission to be fatal to the conviction. (Nels v. The State, 2 Texas, 280; Baird v. The State, 38 Texas, 599; Cannon v. The State, 5 Texas Ct. App., 34; Kennon v. The State, 7 Texas Ct. App., 326; Howard v. The State, 8 Texas Ct. App., 612; Berry v. The State, 10 Texas Ct. App., 315.)

We are of the opinion that the defendant’s plea to the jurisdiction was properly overruled. The defendant was extradited from Mexico for the offense of theft of cattle, and was tried for and convicted of that offense. There appear some irregularities in the proceedings had to obtain the requisition, but it does not appear that the extradition was fraudulently or wrongfully obtained, or that it was in violation of the treaty between the United States and Mexico. The case is essentially different from Blandford v. The State, 10 Texas Ct. App., 627.

Because the record does not show that the jury was sworn, the judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered November 11, 1882.

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Willson, J.

The record in this case fails to show that the jurors who tried the case were sworn. Repeated decisions of the Supreme Court of this State, and of this court, declare such an omission to be fatal to the conviction. (Nels v. The State, 2 Texas, 280; Baird v. The State, 38 Texas, 599; Cannon v. The State, 5 Texas Ct. App., 34; Kennon v. The State, 7 Texas Ct. App., 326; Howard v. The State, 8 Texas Ct. App., 612; Berry v. The State, 10 Texas Ct. App., 315.)

We are of the opinion that the defendant’s plea to the jurisdiction was properly overruled. The defendant was extradited from Mexico for the offense of theft of cattle, and was tried for and convicted of that offense. There appear some irregularities in the proceedings had to obtain the requisition, but it does not appear that the extradition was fraudulently or wrongfully obtained, or that it was in violation of the treaty between the United States and Mexico. The case is essentially different from Blandford v. The State, 10 Texas Ct. App., 627.

Because the record does not show that the jury was sworn, the judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered November 11, 1882.

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13 Tex. Ct. App. 158, 1882 Tex. Crim. App. LEXIS 198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-state-texapp-1882.

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