Belcher v. State

• Citation: 257 S.W. 1097
• Decision Date: 23 January 1924
• Docket Number: (No. 8353.)
• Parties: BELCHER v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

257 S.W. 1097

BELCHER v. STATE.

(No. 8353.)

Court of Criminal Appeals of Texas.

January 23, 1924.

Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.

J. H. Belcher was convicted of murder, and he appeals. Reversed and remanded.

W. W. Nelms, of Dallas, for appellant.

Shelby S. Cox, Cr. Dist. Atty., of Dallas, Tom Garrard, State's Atty., of Midland, and Grover C. Morris, Asst. State's Atty., of Devine, for the State.

HAWKINS, J.

The offense is murder; punishment fixed at confinement in the penitentiary for a period of 10 years.

In selecting the jury appellant sought to inquire of the veniremen on their voir dire whether they belonged to the organization known as the Ku Klux Klan. Upon objection by the state, appellant's counsel stated, among other things, that it was highly important to the appellant that he ascertain whether the jurors belonged to the organization mentioned so that the peremptory challenges accorded him by the statute might be intelligently exercised, and gave his reasons for believing the information sought to be important. The court sustained the state's objection and told counsel he might ask the jurors if they belonged to any organization or institution which would influence them against the appellant if taken upon the jury. The subject is not a new one, but in principle has been before the court in other cases. In the recent case of Kerley v. State, 89 Tex. Cr. R. 199, 230 S. W. 163, while the inquiry did not relate to the membership in the organization mentioned, the same principle was involved, and the operation of the law upon the right of peremptory challenge was adverted to in the following language:

"As related to a peremptory challenge, a juror is `objectionable' whom the accused on trial, desiring to eliminate, makes known his wish in a timely and orderly manner. A peremptory challenge is, in our statute, defined as `a challenge made to a juror without assigning any reason therefor.' Code of Crim. Proc. art. 609. It is the privilege of accused to exclude from jury service one who, in his judgment, is unacceptable to him. Thompson on Trials, vol. 1, § 43. In conferring it the law gives effect to the natural impulse to eliminate from the jury list not only persons who are rendered incompetent for some of the disqualifying causes named in the statute but persons who, by reason of politics, religion, environment, association, or appearance, or by reason of the want of information with reference to them, the accused may object to their service upon the jury to which the disposition of his life or liberty is submitted."

The exact question was before the court in the case of Reich v. State (Tex. Cr. App.) 251 S. W. 1073. In that case the court prevented the appellant from ascertaining from the veniremen whether they were members of the Ku Klux Klan. The appellant excepted to this upon the ground that the information desired was necessary in the exercise of his peremptory challenges. Holding that inquiry to be a proper one, this court used the following language:

"Under the practice in this state, the right to interrogate veniremen on their voir dire is not open to question. This may be done in order to elicit facts that will enable them to exercise their right of peremptory challenge in an intelligent manner. This must, of course, within reasonable limits, be determined under the facts of the particular case by the trial judge. His...