Pierson v. State

18 Tex. Ct. App. 524, 1885 Tex. Crim. App. LEXIS 139

• Court: Court of Appeals of Texas
• Decided: June 20, 1885
• Docket: No. 3610
• Status: Published

Opinion

Willson, Judge.

I. John A. Webb, when being examined upon his voir dire touching his qualifications as a juror in this case, stated as follows: “I am personally acquainted with the defendant Bobert Pierson, and have known him for six or eight years. I am a hardware merchant in the city of Austin, and defendant has traded with my firm considerably. He has always been prompt in his dealings. He may now owe my firm a small amount of money. I also knew Doctor Stovall (the deceased), but not so well as I do the defendant. I merely knew him. I have both read and heard something about the case, but have not made up my mind from hearsay or otherwise as to the guilt or innocence of the defendant that would influence me in finding a verdict. I have liked the defendant very well ever since I became well acquainted with him. As a juror in the case, I should find a verdict according to the evidence under the law as given in charge by the court, I should dislike very much to find him guilty.” Thereupon the district attorney challenged the proposed juror for cause, the cause of challenge being that he was disqualified to serve as a juror in the case by reason of bias in favor of the defendant. This challenge was sustained, and the defendant excepted to this action of the court, and insists that it is error for which the conviction should be set aside.

One of the causes for challenge prescribed by our Code is that the proposed juror “has a bias or prejudice in favor of or against the defendant.” (Code Crim. Proc., art. 636, subd. 12.) A bias in favor of a defendant is as much a cause for challenge as & prejudice against him. Mr. Webster defines the word “bias” as follows: “ A leaning of the mind; propensity towards an object, not leaving the mind indifferent; inclination; prepossession; bent.” This definition is applicable to the word as used in the above quoted article of the Code. Having in view this definition, did the trial judge err in holding that the proposed juror Webb was biased in favor of the defendant ? We think he did not err in so holding. The statements of Webb clearly evince that there was a leaning of his mind, an inclination, a prepossession, a bent in favor of the defendant. His mind was not indifferent with respect to the defendant. He had known the defendant, and had business transactions with him for years past, and their business relations still continued. lie liked the defendant, and woidd dislike very much to find him guilty. Suppose he had stated that he disliked the defendant, and would like very much to find him guilty; would he have been a proper person to serve as a juror in the case? We can perceive no difference in the instance we are considering and the one we have supposed, except that, in the former, bias in favor of the defendant is shown, while in the latter prejudice against him would be shown. In either case the proposed juror is not indifferent, not impartial, and should not serve as a juror. The leading and paramount object of our jury law is to secure impartial, fair minded men as jurors to try causes, civil and criminal, and more particularly criminal causes, where not only the life and liberty of the defendant may be involved, but also the peace, security and welfare of society. This right to have fair and impartial jurors is the right of the State as much as it is of the defendant. It is as much the right of the State to exclude from the jury a person who has a bias in favor of the defendant, as it is for the defendant to exclude one who is prejudiced against him. (Mason v. The State, 15 Texas Ct. App., 534.)

In treating upon this subject Mr. Chitty says: “ The cases of such a challenge are manifestly numerous, and dependent upon a variety of circumstances; for the question to be tried is, whether the juryman is altogether indifferent as he stands unsworn; because he may be, even unconsciously to himself, swayed to one side and indulge his own feelings, when he thinks he is influenced entirely by the weight of evidence.” (1 Chitty’s Cr. Law, 544.)

The law is exceedingly jealous of the purity of the jury box, and always has been. It seeks to shut up every avenue through which corruption or the influence of friendship, or any other improper influence, could possibly make an approach to it. It recognizes the fact that impartiality is the corner-stone of the fairness, security and advantages of trial by jury. It confides to the trial judge a very broad discretion in determining whether or not a person who is proposed as a juror is impartial and indifferent in the particular case to be tried. It is made his particular duty to carefully supervise the selection of the jury, and see that it is composed of persons who are qualified to serve, and who have neither bias in favor of, nor prejudice against, the defendant. In the discharge of this duty the judge may properly himself examine persons offered as jurors as to their competency and fitness. He should be fully satisfied of the fairness and impartiality of the person offered as a juror before allowing him to serve as such. It has been wTell said: “ The rule is well settled that it is the duty of the court to superintend the selection of the jury, in order that it may be composed of fit persons. Large discretion must be confided to the trial court in the performance of this duty, nor will the action of the court in this behalf be made the subject of revision, unless some violation of the law is involved or the exercise of a gross or injurious discretion is shown.” (Thompson & Herriam on Juries, § 258.) And it has been repeatedly held by this court that in determining as to the fitness of a juror, the question is one largely of discretion with the trial judge, and his action therein will not be revised by this court, unless it be made apparent that the discretion has been abused to the injury of the defendant’s rights, or that the law has been infringed. (Mason v. The State, 15 Texas Ct. App., 534, and cases cited.)

And in Dreyer v. The State, 11 Texas Ct. App., 631, it was said: “ In this country, where fair and impartial jurors can be had so readily, there is really no reasdn why questions "of this character should arise, and in all cases where there is a possibility for serious doubt as to the impartiality of a juror, from whatever cause, the court, in the exercise of the discretion conferred upon it, should promptly discharge him.” But while the discretion of the trial judge in this matter is indeed a broad one, it is by no means unlimited or arbitrary. It has been more than once held by this court that the judge had no right to stand aside a qualified juror without the consent of the defendant; that such action would be an abuse of discretion, and would be reversible error. (Hill v. The State, 10 Texas Ct. App., 618; Wade v. The State, 12 Texas Ct. App., 357; Greer v. The State, 14 Texas Ct. App., 179; Mason v. The State, 15 Texas Ct. App., 534.)

In the case before us we are clearly of the opinion that the proposed juror had a bias in favor of the defendant, and was therefore disqualified to serve as a juror in the case; and the court ruled correctly in excluding him.

II. We find in the record several bills of exception reserved by the defendant both to the admission and exclusion of evidence. We will consider and dispose of them in their order.

First. The testimony of Felix E. Smith as to distances and localities, and as to the several ways of traveling from the defendant’s house to that of Tom Pierson, his brother and co-defendant, was admissible. These were facts necessary to be shown in order to place before the jury facts which would enable them to understand and to determine the bearing and force of other facts in evidence, and to be put in evidence by the State. The charge of the State was that the defendant and Tom Pierson, acting together, had committed the murder. To support this charge it was relevant and proper to prove any facts and circumstances which would show, or tend to show, that they did or could have acted together in the commission of the deed. Their proximity to each other and to the place where the murder was committed; the topography of the country; the different ways of travel from place to place in that locality; and various other facts apparently irrelevant, might, in connection with other evidence, be not only relevant, but potent to establish the guilt of the defendant. That the relevancy or materiality of this testimony did not appear at the time it was offered did not require its exclusion. The district attorney in offering it stated to the court that it would be followed by other evidence which would so connect it with the issue to be tried as that its relevancy and materiality would be apparent. The court had the discretion to act upoh this assurance of the district attorney and admit the testimony. (Heard v. The State, 9 Texas Ct. App., 1; Avery v. The State, 10 Texas Ct. App., 199.) By testimony thereafter adduced by the State, the relevancy and materiality of this portion of the testimony of the witness was clearly shown.

Second. There was no error in admitting the testimony of Mrs. Jane Pierson as to the acts and words of Tom. Pierson at her house on. the day previous to the murder. This was a portion of the State’s evidence offered for the purpose of showing a conspiracy between Tom Pierson and the defendant to commit the murder, and to show the motive or animus actuating them to commit the act. Of course this evidence would not be admissible against the defendant unless a conspiracy was shown to exist between Tom Pierson and the defendant to commit the murder, or unless it was shown that they acted together in the commission of it. But there was not only strong evidence to establish a conspiracy between them to kill the deceased, there was positive evidence that they did kill him, and acted together in doing it. (Whart. Cr. Ev., § 698; 3 Greenl. Ev., §94; 1 Bish. Cr. Proc., §§ 1248, 1249; O'Neal v. The State, 14 Texas Ct. App., 582; Phelps v. The State, 15 Texas Ct. App., 45; Hannon v. The State, 5 Texas Ct. App., 549; Phillips v. The State, 6 Texas Ct. App., 364.) The objection made to the testimony of this witness, in regard to abusive remarks made by defendant about deceased, are objections to the credibility rather than the competency thereof, and the court did not err in refusing to exclude the same.

Third. It was not error to admit the testimony of the witness Odenheimer as to what he observed at Tom Pierson’s house on the morning after the murder; nor to admit the testimony of the witness Tulk as to finding pistols at Tom Pierson’s house on said morning. There was positive evidence that Tom Pierson and the defendant, acting together, committed the murder. Whilst the declarations of Tom Pierson, made after the consummation of the murder, and when the defendant was not present, would not be admissible evidence against the defendant, still any fact or circumstance which would tend to prove the guilt of Tom Pierson would also tend to prove the guilt of the defendant, and would be admissible against him, the evidence having directly connected them together in the commission of the offense. Such facts and circumstances would be corroborative of the direct evidence of their joint guilt. That Tom Pierson was found in bed at home on the next morning after the murder, while all the other members of the family were up, and that three pistols were found at his house, one of which had the appearance of having been recently discharged, were circumstances which, when considered in connection with the other evidence in the case, were relevant to prove the guilt of this defendant. They were independent, physical facts of an inculpatory nature, and were not acts and declarations of a co-conspirator, transpiring after the consummation of the crime.

■ Fourth. The testimony of Doctor Swearingen as to the question put to the deceased: “ If he could have been mistaken about the parties who shot him,” and the answer made thereto by the deceased : “ I do not think it possible for me to be mistaken as to who shot me,” was properly admitted. The question was not one calculated to lead the deceased to make any particular statement. (Code Crim. Proc., art. 748; Hunnicutt v. The State, ante, p. 498.)

Fifth. The testimony of the witnesses G-agnan and Tumberlin was properly admitted. The declarations by the deceased that were testified to by them were res gestee. The declarations were almost coincident in point of time with the principal fact,— the shooting— and sprang out of and tended to explain that fact. They were voluntary and spontaneous. The mere fact that some of the declarations were made in response to questions asked does not take from them their voluntary and spontaneous character. The circumstances under which they were made clearly preclude the idea that they were not voluntarily and spontaneously uttered. (Boothe v. The State, 4 Texas Ct. App., 203; Stagner v. The State, 9 Texas Ct. App., 440; Warren v. The State, 9 Texas Ct. App., 619; Foster v. The State, 8 Texas Ct. App., 248; Means v. The State, 10 Texas Ct. App., 16; Williams v. The State, 10 Texas Ct. App., 528; Hobbs v. The State, 16 Texas Ct. App., 517.)

Sixth. It was within the sound discretion of the court to permit the State’s witnesses to be recalled and re-examined in relation to the eye-sight of the deceased, and the darkness of the night of the homicide, notwithstanding these witnesses had been discharged from the rule, and had been present and heard the testimony of the defendant’s witnesses upon these subjects. This was strictly in rebuttal of testimony introduced by the defendant, and related to matters which could not reasonably have been anticipated by the State, and about which the witnesses recalled by the State had peculiar opportunities of knowledge. In determining the propriety and necessity of permitting these witnesses to again testify in the case, the trial judge was vested with a wide discretion, which this court will not revise, as it does not appear to us that there has been 'any abuse of discretion. It was not within the power of the counsel of the parties, by any agreement entered into, to defeat or restrict this discretionary power vested by the law in the court. It was the duty of the trial judge, if in his judgment the testimony was essential to the ends of justice, and the witnesses were of a character not likely to be influenced in their statements by the testimony they had heard, to permit them to testify. In this instance we think the trial judge exercised a sound discretion. (Roach v. The State, 41 Texas, 261; Goins v. The State, 41 Texas, 334; Sherwood v. The State, 42 Texas, 498; Shields v. The State, 8 Texas Ct. App., 427; Estep v. The State, 9 Texas Ct. App., 366; Powell v. The State, 13 Texas Ct. App., 244.)

As to the remark made by the trial judge to defendant’s counsel in regard to permitting Mrs. Stovall to again testify in the case, it is not shown by the bill of exception taken thereto, that it was heard by the jurors or any of them, or that any injury could have resulted therefrom to the defendant. As presented by the bill of exception, we are not called upon to revise this action of the court.

Seventh. In regard to the bill of exceptions reserved to the rulof the court in excluding the testimony of Doctor Q. C. Smith, as to the effect of advanced age upon the eye-sight, it is not shown what facts were expected to be proved by said witness. The question propounded to said witness is stated, but it is not stated what answer was expected to be elicited thereby. We are, therefore, unable to determine whether the testimony, if admissible, would been material.

III. Exceptions were taken by the defendant to certain remarks made by the district attorney in his opening address to the jury, which remarks are set forth in the bill of exceptions. Upon the exception being made, the trial judge promptly told the jury that the remarks were outside the evidence, foreign to the issue in the case, and to pay no attention thereto. If the remarks were improper, the court as far as possible removed from the minds of the jury any injurious effects calculated to be produced thereby. But can see nothing materially improper in the district attorney’s remarks. He should not, perhaps, have expressed his belief in the defendant’s guilt. Mr. Bishop, in speaking of counsel for the defendant, says: “ Ho lawyer ought to undertake to be a witness for his client, except when he testifies under oath, and subjects himself to cross-examination, and speaks of what he personally knows. Therefore the practice, which seems to be tolerated in many courts, of counsel for defendants protesting in their addresses to the jury that they believe their clients to be innocent, should be frowned down and put down, and never be permitted to show itself more.” (1 Bish. Cr. Proc., § 311.) We agree with the author in this view, and we think it applies equally to counsel for the prosecution. They should not intrude their belief in the guilt of the accused, upon the jury. But it is not probable that a jury would determine a case upon the belief of counsel, and especially when instructed by the court to disregard such remarks.

As to the other remarks of the district attorney which were objected to, we can perceive no impropriety in them. It was the duty of the district attorney, if he thought the evidence established the guilt of the defendant, to demand his conviction. He demanded a conviction in the name of the State, in the name of law, justice and right, in the name of society, in the name of the widow and children of the deceased. We see nothing wrong in this. If the defendant committed the murder, he had acted against the peace and dignity of the State; he had outraged law, justice, right and society; he had clothed the wife in widow’s weeds, and had made fatherless the children of the deceased; and each and all of these consequences of his crime demanded his conviction and punishment.

It has become quite common to except to the remarks of counsel for the State in their addresses to the jury. We find such exceptians in the majority of contested cases that come before us. If we had sustained all these exceptions, the effect would have been to have virtually closed the mouths of prosecuting attorneys. While argument should be restricted legitimately, it should not be so unreasonably limited as to render it ineffectual. The State has rights in this respect as well as defendants. And in view of the frequency of exceptions of this character, we will take occasion here to say that before we will reverse a conviction because of remarks of prosecuting counsel, it must clearly appear to us, 1, that the remarks were improper, and, 2, that they were of a material character, and such as, under the circumstances, were calculated to injuriously affect the defendant’s rights.

IY. There were no exceptions taken to the charge of the court, but several supposed errors therein are presented in the defendant’s motion for new trial, in the assignment of errors, and in the brief of counsel for the defendant. We have carefully considered the charge in all of its parts, and with reference to every aspect of the case, and we find no error in it. In our opinion it contains all the law of the case, and is strictly and accurately applicable to the evidence. It is unnecessary that we should discuss the objections made to the charge in detail. Hone of the objections are, in our judgment, well grounded.

Y. We will not recite or discuss the evidence in the case. The dying declarations of the deceased, which were properly admitted in evidence, were, of themselves, sufficient to warrant the verdict found by the jury.

We find no error in the record for which the conviction should be set aside, and the judgment is affirmed.

Affirmed.

[Opinion delivered June 20, 1885.]