Akens v. State, 22242.

• Decision Date: 06 January 1943
• Docket Number: No. 22242.,22242.
• Citation: 167 S.W.2d 758
• Parties: AKENS v. STATE.
• Court: Texas Court of Criminal Appeals

167 S.W.2d 758

AKENS v. STATE.

No. 22242.

Court of Criminal Appeals of Texas.

January 6, 1943.

Rehearing Denied January 27, 1943.

Appeal from District Court, Ellis County; A. R. Stout, Judge.

L. C. Akens was convicted of murder with malice, and he appeals.

Judgment reversed, and cause ordered dismissed.

Jules F. Mayer, of Dallas, for appellant.

Forrester Hancock, Criminal Dist. Atty., and F. L. Wilson, Asst. Criminal Dist. Atty., both of Waxahachie, and Spurgeon E. Bell, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was charged with the murder with malice of V. L. Morris, and upon a conviction he was awarded a penalty of confinement in the State prison for his lifetime.

The facts are reasonably clear and show from the State's standpoint that in the early part of the night of September 15, 1941, Mr. and Mrs. Morris as well as several others were at the intersection of two streets in the city of Dallas, Texas, waiting to board a street car. Appellant, a negro, in company with some other negroes, was also waiting to board such car. Upon the approach of such car Mrs. Morris started to board the car, and appellant brushed in front of her, pushing her aside by striking her on the left breast with his body. At such time the deceased, a policeman of the city of Dallas, took hold of appellant and said "Come back here, boy", at which time appellant developed a knife with a blade three or four inches long, and lunged at the deceased with the knife. A scuffle ensued, and the policeman pulled his pistol and said "Drop that knife". The officer struck the negro over the head with the pistol, and a shot was fired therefrom. The scuffling continued, the officer backing towards the street curb, and appellant "lunging" at him with the knife; a second shot was fired, and appellant then had the gun; the deceased then started running towards the street car, and the appellant raised the gun and shot the deceased in the back, and deceased fell with his body inside the street car and his feet on the steps. Appellant then fled, and was caught by a soldier who witnessed the transaction, but appellant relieved himself of the hold of the soldier, cursed him and threatened to kill him. He afterwards went to the city hall and surrendered, and gave up the officer's gun.

Appellant was indicted by a grand jury of Dallas County for murder, the grand jury having been organized at the July term, 1941, of a district court of that county. He made a motion to quash the indictment thus found by this grand jury, upon the ground that such indictment was illegal and void and of no force and effect because of the fact that the negro as a race had been discriminated against in that no negro was on such grand jury. We find in the record a statement of facts heard upon such motion, consisting of the testimony of thirty witnesses, 61 pages, in which it is sought to be shown that (1) no negro had ever been drawn and served on a grand jury of Dallas County, and (2) that there were negro residents in Dallas County possessing the necessary qualifications under the statute for grand jury service.

Appellant also moved to quash the different jury panels after the first panel had been disposed of on the ground that he was entitled to have presented to him continuously the first venire in this cause until all veniremen had been utilized or disposed of before he could again be arraigned before a further venire.

This case had rather a checkered career. Upon its first call a venire of 300 men were presented from whom a jury was to be selected. By nighttime of the first day for jury selection four jurors were selected. It appears that one of the thus selected jurors became convinced that his mind was fully made up, although no evidence had been heard, and it could not be changed, whereupon he was insistent in making such fact known to the court. The court then discharged such four jurors, and also the whole panel, and reset the case for a later date. Upon the appearance of a second venire at the later date, the whole venire was quashed upon motion of appellant for some undisclosed irregularity in the summoning thereof.

Upon a further setting of the case, a jury of twelve men was selected, and a near relative of one of the jurors suddenly died, and upon agreement of all parties, including appellant, the jury was dismissed. Whereupon the trial court upon his own motion changed the venue of this cause to Ellis County, where the final trial was had.

Appellant objected to each and every jury venire after the first one, and demanded that the remainder of the first venire, unexhausted at the time of the discharge of the four jurors, be presented to him at each trial, offering the Sharpe case, Sharpe v. State, 17 Tex.App. 486, 487, as authority for such a position. The Sharpe case does not lay down such a doctrine. Appellant's attorney also cites us to Hall v. State, locating the same in 12 Tex. 739. We find...