Bailey v. State

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: Brooks
• Citation: 120 S.W. 419
• Parties: BAILEY v. STATE.
• Decision Date: 19 May 1909

Page 419

120 S.W. 419 BAILEY
v.
STATE. Court of Criminal Appeals of Texas. May 19, 1909. Rehearing Denied June 9, 1909.

Appeal from Williamson County Court; T. J. Lawhon, Judge.

Will Bailey was convicted for violating the local option law, and he appeals. Affirmed.

Wilcox & Graves, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

This is a conviction for violating the local option law; the punishment being assessed at a fine of $25 and 20 days in jail.

Bill of exceptions No. 2 presents the following matter for our review: "When the case was called for trial, appellant moved the court to quash and set aside the jury panel in this cause, because six of said jurors composing said panel had recently, on this same date, sat as the jury in cause No. 6,118, in this court, wherein was charged a violation of the local option law, and the witness Wes Orgain, who is also a witness in this cause, was the state's main witness in cause No. 6,118, and wherein the jury have just returned a verdict, predicated mainly on said Wes Orgain's testimony, finding the defendant guilty in said cause No. 6,118, and that the remainder of said panel of said jury have been present continuously during the taking of the testimony in said cause No. 6,118, and heard the testimony of said witness, Wes Orgain, and also heard the verdict of the jury rendered in said cause, finding defendant therein guilty. That therefore said jury panel are disqualified to sit in this cause, and defendant asks another panel before whom to present his defense. That appellant was charged in this case with violating the local option law, and cause No. 6,118, in which the prosecuting witness in this case was also the main witness, was a local option case. That therefore the jury have passed upon the credibility of said witness, and have adjudicated the matter required to be passed upon in this case. The county attorney filed a controversion of the above facts, and insists that the motion is insufficient, for the reason that the acts charged are separate and distinct acts committed by different parties; that the facts in the two cases are in no way similar; that the guilt or innocence of the defendant just tried cannot be heard or considered, and is in no way material matter to the case now being called. The motion was overruled, and appellant forced to exhaust all of his peremptory challenges in an effort to secure a fair and an impartial jury." The facts above...