Bartlett v. State

• Decision Date: 16 January 1918
• Docket Number: (No. 4807.)
• Parties: BARTLETT v. STATE.
• Court: Texas Court of Criminal Appeals

200 S.W. 839

BARTLETT v. STATE.

(No. 4807.)

Court of Criminal Appeals of Texas.

January 16, 1918.

Rehearing Denied February 13, 1918.

Appeal from Baylor County Court; Nat G. Mitchell, Judge.

Comer Bartlett was convicted, and appeals. Affirmed.

J. S. Kendall, of Seymour, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant was convicted of the theft of two turkeys. The state relied upon the testimony of an accomplice whose evidence was sufficiently corroborated. Appellant denied the theft and introduced evidence tending to establish an alibi. The issues were submitted to the jury in a charge which is not complained of.

Bill of exception No. 1 complains of the refusal of the court to permit appellant, upon the examination of the juror Parker, on his voir dire, to ask the following question:

"If in the trial of this case it should develop that the state relies for conviction upon the testimony of an accomplice, would you convict the defendant solely upon the testimony of the accomplice?"

In allowing the bill the court qualified it with the statement that each juror, responding to the question by the court, stated that he would decide the case according to the law as given in the charge by the court in regard to the testimony of an accomplice, as well as to all other testimony. It is not disclosed by the bill that Parker was on the jury that tried the case. This renders the bill inoperative to show error even if the court was in error in refusing to permit the inquiry, and this, we think, the bill as qualified does not show. Kramer v. State, 34 Tex. Cr. R. 84, 29 S. W. 157; Segars v. State, 35 Tex. Cr. R. 45, 31 S. W. 370; Jones v. State, 37 Tex. Cr. R. 433, 35 S. W. 975; Jordan v. State, 37 Tex. Cr. R. 224, 38 S. W. 780, 39 S. W. 111; Stevens v. State, 68 Tex. Cr. R. 282, 150 S. W. 944; Poulter v. State, 70 Tex. Cr. R. 197, 157 S. W. 166; Collins v. State, 77 Tex. Cr. R. 156, 178 S. W. 350; Barnes v. State, 74 Tex. Cr. R. 501, 168 S. W. 858.

Bill No. 3 reiterates the subject-matter of bill No. 1, supra, and states that counsel proposed, and was refused permission, to ask each of the jurors the same question, and that on motion for new trial this action was complained of, and, in connection therewith, after exhausting his peremptory challenges he was "compelled to accept the juror Francis," who was objectionable to the defendant for the reason that upon his voir dire he had stated that the filing of a complaint created in his mind an evidence of guilt. Qualifying this bill, the court says that each of the jurors on their voir dire stated that they would decide the case according to the law as given in the court's charge in regard to the testimony of the accomplice, as well as to all other matters of evidence; and that the juror Francis stated that an indictment for chicken theft would prejudice him to some extent against a person so charged, but that if selected as a juror he could and would lay aside any prejudice he might have and would try the case solely according to the law as given in charge by the court, and the evidence submitted under the rulings. The bill fails to show that the question to the juror Parker, and the proposed inquiry of the other jurors, would have elicited an answer disqualifying them or rendering them objectionable to appellant, and in this respect is incomplete. Caton v. State, 66 Tex. Cr. R. 473, 147 S. W. 590. We are unable to determine from this bill that the juror Francis was challenged for cause. It does state that he was objectionable and was forced on appellant. An objectionable juror is one who has formed some opinion as to the guilt or innocence of the accused. Keaton v. State, 40 Tex. Cr. R. 145, 49 S. W. 90; Connell v. State, 45 Tex. Cr. R. 153, 75 S. W. 512. From the bill as qualified, we infer that the mental attitude of the juror Francis was, not that he had formed an opinion as to the guilt or innocence of the appellant, but rather that such prejudice as he had was against the offense with which appellant was charged. The statute (article 692, C. C. P., subds. 12 and 13) deals with bias or prejudice. None of the subdivisions of this statute mention in terms the adverse feeling produced by knowledge of the indictment. The indictment is not evidence of guilt, and the court is required to charge the jury on a presumption of innocence and the necessity of proof of guilt beyond a reasonable doubt. This was done in the instant case, and the juror introduced stated that he...