Barkman v. State

• Decision Date: 31 May 1899
• Parties: BARKMAN v. STATE.
• Court: Texas Court of Criminal Appeals

52 S.W. 69

BARKMAN v. STATE.

Court of Criminal Appeals of Texas.

May 31, 1899.

Appeal from district court, Camp county; J. M. Talbot, Judge.

Frank Barkman was convicted of murder in the second degree, and he appeals. Reversed.

John J. King, Todd & Glass, and Zachery & Heath, for appellant. Sheppard & Jones, R. D. Hart, Dist. Atty., and Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years, and he appeals.

The theory of the state shows an unprovoked and cowardly murder. The defendant, by his testimony, presents the theory of accidental homicide, and, at most, negligent homicide of the second degree. When the case was called for trial, appellant made a motion to quash the indictment on the ground that he was not present when the grand jury was impaneled, though he was in jail at the time and made a request to be present. The court heard proof on this matter, which was, in substance, as follows: Appellant was under arrest charged with murder in this and another case. The examining trial took place in Bowie county, where the alleged offenses were committed, and in one case (not this one) he was refused bail, and by the order of the magistrate was confined in the jail of Red River county, at Clarksville, and was there when the indictment in this case was presented by a grand jury of Bowie county. Appellant shows by his own testimony that on several occasions he informed one Fergurson, the jailer at Clarksville, in Red River county, that, when the grand jury of Bowie county met, he wanted to be there to see who got on the grand jury; that he also wrote to his brother, Joe Barkman, to get him back to Boston by the opening of the district court; that he wanted to be there to see who got on the grand jury; that no opportunity was afforded him to be present at the meeting of the grand jury; that, if he had been there, he would not have been willing for Whitaker and Moores to sit on the grand jury, and he had also heard that Ramseur and Dick Elliott were against him; that Whitaker did not like him because of some previous trouble he had, but he did not know whether Whitaker was prosecuting him. Appellant's testimony was corroborated, by both his brother and one Williams, as to his request to the jailer, Fergurson, to have him brought back to Bowie county when the grand jury met. This is substantially all the material testimony on the subject. As stated before, appellant made a motion to quash the indictment on the grounds alleged. By reference to the articles of the Code of Criminal Procedure, it does not appear that this is one of the grounds for which the indictment would be quashed. But concede that the court would quash the indictment, or in some mode dismiss the same and abate the prosecution, we do not believe that appellant has made a case that would, under any circumstances, authorize the court to interfere. Article 397, Code Cr. Proc., provides that "any person before the grand jury has been impaneled, may challenge the array of jurors, or any person presented as grand juror, and in no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall, upon his request, be brought into court to make such challenge." The succeeding articles, to 403 inclusive, indicate the grounds of challenge and the mode of procedure. The first ground of challenge to the array is that the grand jurors are not in fact the persons selected by the jury commissioners; and, second, if selected by the jury commissioners, that the officer who summoned them had acted corruptly. No ground of this character is urged. A challenge to a particular grand juror may be made orally, and for the following causes only: (1) That he is not a qualified juror; (2) that he is the prosecutor upon an accusation against the person making the challenge; (3) that he is related by consanguinity or affinity to some person who has been held to bail, or who is in confinement upon a criminal accusation. No suggestion is made that any member composing the grand jury was not a qualified grand juror. While there is some suggestion in the motion that Whitaker was a prosecutor upon the accusation against appellant, there is absolutely no proof of this. Now, if appellant had been present at the impanelment of the grand jury, it is not shown that he could have availed himself of a solitary ground of challenge against any person impaneled on the grand jury, and what he could not do then it is idle to talk about his being allowed to do subsequently. Besides this, it occurs to us that, if he can avail himself at all of this privilege to be present in the impanelment of the grand jury (being confined out of the county of the prosecution), he must make some formal request to those in charge of him. He should have made a formal request to the judge, and not to the jailer, and, if he did not have access to the sheriff, he should have made this request to the judge through the jailer. Evidently the counsel who were managing this case should have known that he desired to be present at the impanelment of the grand jury. If appellant was serious about this matter, the desire could very easily have been transmitted to his counsel, but his counsel had no information on this subject. Webb v. State (Tex. Cr. App.) 40 S. W. 989.

When the case was called for trial, appellant filed a motion requesting the court to compel the state to disclose the names of certain persons whom he alleged were private prosecutors against him; that said persons had subscribed and paid and agreed to pay money to employ private counsel to prosecute him in the case, and in other ways to aid and assist the state in the prosecution thereof; that the defendant does not know who said parties are or where they reside, but claimed that he was entitled to know who they were and where they resided. This was refused, and appellant reserved his bill of exceptions. This motion was made in the district court of Bowie county, and it is further shown that the bill of exceptions was presented at the trial in Camp county, where the venue of the case had been changed. It is not shown that the motion was renewed there. Concede, however, that the motion here was properly made or renewed in Camp county, still it does not show what particular advantage it would have been in the county of the prosecution for appellant to know whom said prosecutors were. Nor is it shown that any prejudice accrued to him, if there were such private prosecutors and their names were concealed, because he was not informed as to their names and residence. It may have been very important if the prosecution and trial of the case had continued in Bowie county, and there were private prosecutors, that appellant should know who they were; or it might have been of importance in the county of Camp, to which the venue of the case had been changed, if there were such private prosecutors, and their names were concealed from him, to know who they were; but the motion assigns no reason or advantage on the one hand, or of prejudice on the other. We cannot hold as an abstract proposition that appellant has a right in every case to be informed as to the private prosecutors in the case. Of course, in the conduct of the case at the trial, and the examination of the jurors when they are impaneled, and in the examination of witnesses, the defendant may probe each juror or witness, and have them disclose whether or not they are in any wise interested in the prosecution against him; and such was the holding of this court in Heacock v. State, 13 Tex. App. 129; McInturf v. State, 20 Tex. App. 354; Moore v. State (...