Winkler, J.
The appellant was tried and convicted of murder in the second degree, for the alleged murder of Robert P. McKennie, committed in Grayson County on the twenty-sixth day of January, 1878, and his punish[37]*37ment was assessed at confinement at hard labor in the State penitentiary for a period of ninety-nine years. A motion for a new trial was made, and being refused, this appeal is taken. At the request of one of the counsel for the accused, appointed to defend him in the District Court, the appeal is returned to this, the Galveston, branch of the court. The transcript of the record was filed in this court on January 22,1879, but so far there has been no appearance entered for the appellant, either by brief or otherwise, and on behalf of the State the matter is submitted to the court without comment; so that we are left to examine and pass upon the merits of the case, and the legality of the proceedings under which the appellant has been tried and adjudged guilty of a high crime, and the severe punishment imposed, from the transcript alone, without the aid of counsel, or even an assignment of error.
The first subject presented in the record for consideration is raised as to the ruling of the court in refusing to sustain exceptions or challenges to certain jurors, summoned to supply a deficiency after the regular venire had been exhausted, on the ground that they had been summoned in violation of the jury law of 1876. By sect. 23 of the act (Acts 1876), directions are given as to the manner of obtaining a special venire; and therein it is, among other things, provided for supplying any deficiency arising under the circumstances stated. This proviso is appended to the section, to wit: ‘ ‘ Provided, that in supplying the deficiency it shall not be lawful for the sheriff, or any other officer, to summon as a juror any person found within the court-house or yard, if they can be had elsewhere.”
It is shown by bills of exception that one juror, when he was summoned by the sheriff, was “within twenty feet of the court-house, on the court-house square; ” that another juror “ was summoned while sitting, in company with other gentlemen, upon the railing around the public court-house well, on the court-house square, within twenty or thirty feet [38]*38of the court-house, there being no inclosure around the court-house or public square.” Three other jurors were found by the sheriff on what is known as the court-house square in Sherman, Texas,—one of these stating, when being examined on voir dire, “that he had lived in Sherman for some time, and that the population of said city of Sherman was eight or ten thousand, and that when he was summoned he saw a good many men around town.”
The particular causes of challenge are stated in the bill of exceptions to be, 1st, that the jurors were found on the court-house square, which is the court-yard, there being no inclosure around the court-house ; 2d, that the jurors were found among and taken from the bystanders, and not from the body of the people; 3d, that jurors could have been found elsewhere; 4th, that it was unlawful for the sheriff to summon jurors found in the court-yard, or court-house square, when they could be found elsewhere.
The judge who presided at the trial, in giving a bill of exceptions to his ruling in refusing to sustain the defendant’s challenge to these jurors for cause, appends the following explanation of his ruling, to wit: “ The court-house is situated in the middle of the public square, which is not inclosed, and is four hundred and thirty-two feet in width and breadth, besides twelve feet sidewalk next to the houses surrounding the square, making the distance of four hundred and fifty-six feet between the houses opposite to each other and situated on the square. The court-house is not inclosed, and in the public square the people assemble to sell all kinds of produce. It is used as a public market-place for all kinds of country produce, such as cotton, corn, wheat, oats, wood, etc., and is the common place of resort for vendors and purchasers of such articles. Besides, auctioneers carry on their auctions every day on the square, and were engaged in this business at the time the jury was summoned. The jury was made up before the defendant had exhausted his challenges allowed him by [39]*39law. He had six challenges left when the jury was completed. I also overruled the objections to the jurors, on the ground that this cause of objection is not one named in the statute on the subject.”
We are of opinion that the court did not err in overruling the objections to these jurors, and that the places where the jurors were when summoned on the jury were not within the letter, and certainly not within the spirit, of the law cited above, which prohibits the officers from summoning persons found in the court-house or yard. Statutes of this character are enacted for the purpose of securing fairness and impartiality in jury trials ; and that particular portion under consideration is believed to have been passed in order to prevent the officer whose duty it is to act under it from summoning for the jury those who, from interest or design, should place themselves in convenient positions in order that they may be summoned and taken upon the jury, or to guard against those who have been denominated professional jurors.
The jurors in this case were not found in the court-house, where we would ordinarily expect to find those who desired to have themselves summoned on the jury from an unworthy and improper motive, and cannot be said to have been summoned from the bystanders, but from the body of those liable to perform jury-service when legally called on for that purpose. If the objection would hold good as to a few persons summoned to serve as jurors for a particular purpose, they being found in an uninclosed public square, of the size of that described by the judge, in a city of from eight to ten thousand inhabitants, and the general market-place, it would doubtless greatly impede the administration of the criminal law in that county. The distance from the courthouse to such a place within which a juror could not be summoned would be difficult to fix. It could hardly be contended that a person found within this court-house square could be said to be in the yard of the court-house, in the sense mentioned in the statute.
[40]*40This objection not being found among the causes for challenge enumerated in the statute, we are inclined to the opinion that it should be regarded as directory, unless it should be shown, that a contrary rule would tend to deprive one accused of crime of a fair and impartial trial. It does not appear that this appellant was deprived of a fair trial, or that his case was in any manner prejudiced by the ruling of the court, or by the presence on the jury of these jurors, or either of them. On appeal, this court would not be warranted in setting a conviction aside on a purely technical ground, which involved no material right of the accused. Johnson v.The State, 4 Texas Ct. App. 269. Even the fact that one who was not a competent juror had sat upon the jury would not be ground sufficient to grant a new trial or to reverse a judgment on appeal, if the fact could have been discovered, when the jury was empanelled, by the use of proper diligence. Roseborough v. The State, 43 Texas, 570; O’Mealy v. The State, 1 Texas Ct. App. 180. This disposes of the several bills of exception taken at the trial below.
Free access — add to your briefcase to read the full text and ask questions with AI
Winkler, J.
The appellant was tried and convicted of murder in the second degree, for the alleged murder of Robert P. McKennie, committed in Grayson County on the twenty-sixth day of January, 1878, and his punish[37]*37ment was assessed at confinement at hard labor in the State penitentiary for a period of ninety-nine years. A motion for a new trial was made, and being refused, this appeal is taken. At the request of one of the counsel for the accused, appointed to defend him in the District Court, the appeal is returned to this, the Galveston, branch of the court. The transcript of the record was filed in this court on January 22,1879, but so far there has been no appearance entered for the appellant, either by brief or otherwise, and on behalf of the State the matter is submitted to the court without comment; so that we are left to examine and pass upon the merits of the case, and the legality of the proceedings under which the appellant has been tried and adjudged guilty of a high crime, and the severe punishment imposed, from the transcript alone, without the aid of counsel, or even an assignment of error.
The first subject presented in the record for consideration is raised as to the ruling of the court in refusing to sustain exceptions or challenges to certain jurors, summoned to supply a deficiency after the regular venire had been exhausted, on the ground that they had been summoned in violation of the jury law of 1876. By sect. 23 of the act (Acts 1876), directions are given as to the manner of obtaining a special venire; and therein it is, among other things, provided for supplying any deficiency arising under the circumstances stated. This proviso is appended to the section, to wit: ‘ ‘ Provided, that in supplying the deficiency it shall not be lawful for the sheriff, or any other officer, to summon as a juror any person found within the court-house or yard, if they can be had elsewhere.”
It is shown by bills of exception that one juror, when he was summoned by the sheriff, was “within twenty feet of the court-house, on the court-house square; ” that another juror “ was summoned while sitting, in company with other gentlemen, upon the railing around the public court-house well, on the court-house square, within twenty or thirty feet [38]*38of the court-house, there being no inclosure around the court-house or public square.” Three other jurors were found by the sheriff on what is known as the court-house square in Sherman, Texas,—one of these stating, when being examined on voir dire, “that he had lived in Sherman for some time, and that the population of said city of Sherman was eight or ten thousand, and that when he was summoned he saw a good many men around town.”
The particular causes of challenge are stated in the bill of exceptions to be, 1st, that the jurors were found on the court-house square, which is the court-yard, there being no inclosure around the court-house ; 2d, that the jurors were found among and taken from the bystanders, and not from the body of the people; 3d, that jurors could have been found elsewhere; 4th, that it was unlawful for the sheriff to summon jurors found in the court-yard, or court-house square, when they could be found elsewhere.
The judge who presided at the trial, in giving a bill of exceptions to his ruling in refusing to sustain the defendant’s challenge to these jurors for cause, appends the following explanation of his ruling, to wit: “ The court-house is situated in the middle of the public square, which is not inclosed, and is four hundred and thirty-two feet in width and breadth, besides twelve feet sidewalk next to the houses surrounding the square, making the distance of four hundred and fifty-six feet between the houses opposite to each other and situated on the square. The court-house is not inclosed, and in the public square the people assemble to sell all kinds of produce. It is used as a public market-place for all kinds of country produce, such as cotton, corn, wheat, oats, wood, etc., and is the common place of resort for vendors and purchasers of such articles. Besides, auctioneers carry on their auctions every day on the square, and were engaged in this business at the time the jury was summoned. The jury was made up before the defendant had exhausted his challenges allowed him by [39]*39law. He had six challenges left when the jury was completed. I also overruled the objections to the jurors, on the ground that this cause of objection is not one named in the statute on the subject.”
We are of opinion that the court did not err in overruling the objections to these jurors, and that the places where the jurors were when summoned on the jury were not within the letter, and certainly not within the spirit, of the law cited above, which prohibits the officers from summoning persons found in the court-house or yard. Statutes of this character are enacted for the purpose of securing fairness and impartiality in jury trials ; and that particular portion under consideration is believed to have been passed in order to prevent the officer whose duty it is to act under it from summoning for the jury those who, from interest or design, should place themselves in convenient positions in order that they may be summoned and taken upon the jury, or to guard against those who have been denominated professional jurors.
The jurors in this case were not found in the court-house, where we would ordinarily expect to find those who desired to have themselves summoned on the jury from an unworthy and improper motive, and cannot be said to have been summoned from the bystanders, but from the body of those liable to perform jury-service when legally called on for that purpose. If the objection would hold good as to a few persons summoned to serve as jurors for a particular purpose, they being found in an uninclosed public square, of the size of that described by the judge, in a city of from eight to ten thousand inhabitants, and the general market-place, it would doubtless greatly impede the administration of the criminal law in that county. The distance from the courthouse to such a place within which a juror could not be summoned would be difficult to fix. It could hardly be contended that a person found within this court-house square could be said to be in the yard of the court-house, in the sense mentioned in the statute.
[40]*40This objection not being found among the causes for challenge enumerated in the statute, we are inclined to the opinion that it should be regarded as directory, unless it should be shown, that a contrary rule would tend to deprive one accused of crime of a fair and impartial trial. It does not appear that this appellant was deprived of a fair trial, or that his case was in any manner prejudiced by the ruling of the court, or by the presence on the jury of these jurors, or either of them. On appeal, this court would not be warranted in setting a conviction aside on a purely technical ground, which involved no material right of the accused. Johnson v.The State, 4 Texas Ct. App. 269. Even the fact that one who was not a competent juror had sat upon the jury would not be ground sufficient to grant a new trial or to reverse a judgment on appeal, if the fact could have been discovered, when the jury was empanelled, by the use of proper diligence. Roseborough v. The State, 43 Texas, 570; O’Mealy v. The State, 1 Texas Ct. App. 180. This disposes of the several bills of exception taken at the trial below.
The first and second grounds set out in the motion for a new trial relate to the rulings of the court as shown by these bills of exception, and need not be further noticed here. The third ground of the motion is, that the court erred in refusing to give the charges asked by defendant.
The charges which were asked by counsel for the accused were evidently prepared with care, and in most of them are enunciated correct legal principles; but, because some of them are inapplicable ':o the facts proved on the trial, and because others are deemed inaccurate, and too favorable to the accused, but principally for the reason that the general charge appears to be full and ample, we find no material error in refusing to submit them to the jury as the law of the case.
The fourth, fifth, and sixth grounds of the motion relate mainly to the sufficiency and legality of the evidence. The [41]*41second ground of the motion is thus set out: “Because the charge of the court to the jury as to the corroboration of an accomplice was not full, and was calculated to mislead the jury.” The charge on this subject was as follows : —
“ If you believe from the evidence that the witness Caroline McKennie was concerned or engaged in the killing of Robert P. McKennie, or encouraged by words or aided by acts any one else in killing him, then, in order to convict upon her testimony, it must be corroborated by other evidence in each material fact necessary to convict him, and such corroborating testimony must connect him with the killing. Such corroborating evidence may be either direct or circumstantial.”
To our minds, if this charge is subject to criticism, it is in being more favorable to the accused than the testimony warranted, and we are of opinion that the appellant had no just ground of complaint.
As to the charge of the court, it seems that great pains were taken to give the accused the full benefit of all the law of the case, in a fair and favorable light for the accused, and to properly instruct the jury as to the law applicable to every legitimate view they could take of the evidence, which it was the duty of the court to do ; a,nd, haying done this, the demands of the law upon him were satisfied. We have not deemed it important to consider specially the charge of the court as to the subject of murder in the first degree, nor those asked by the counsel for the accused on the same subject, for the reason that the conviction is not for that grade of offence, but for murder in the second degree. Some of the charges given appear to be more favorable to the accused than the testimony warranted; but of this the appellant cannot be heard to complain. It is evident from what appears in the record that the court appointed able counsel to defend him, and that they have in an able manner conducted his defence on the trial.
After a careful and thorough examination of the case as [42]*42shown by the record, we are of opinion the guilt of the appellant was fully shown by the testimony, and that all the proceedings were conducted with a proper regard for the solemnity of the occasion, the law applicable to it, and the legal rights of the appellant. No such error has been committed on the trial as would have justified the granting of a new trial, or as would warrant this court in disturbing the verdict of the jury and the judgment of the court; and therefore the judgment must be affirmed.
Affirmed.