Black v. State
| Decision Date | 01 January 1874 |
| Parties | JEFF BLACK v. THE STATE. |
| Court | Texas Supreme Court |
APPEAL from Galveston. Tried below before the Hon. Samuel Dodge.
Jeff Black was jointly indicted with Andrew J. Walker for the murder of Green Butler. The facts developed on the trial were identical with those reported in Walker v. The State ( ante, p. 361), with the exceptions stated in the opinion delivered in this case.
The charge of the court in the trial was a reproduction of the charge in Walker v. The State, with the exception of the charge as to alibi, which the court omitted. The errors assigned in that case, with this exception, are common to this.
Verdict, guilty of murder in the first degree, and punishment fixed at imprisonment in the penitentiary for life.
Willie & Cleveland, and Arthur W. Andrews, for appellant, cited Moses v. The State, 10 Humphries, 460; People v. Vermilyea, 7 Cowen, 562; People v. Mather, 4 Wend., 231; 2 Stewart & Porter, 308; Rice v. Tennessee, 1 Yerger, 435.
M. C. McLemore, for the State, cited Henderson v. The State, 12 Texas, 531;Monroe v. The State, 23 Texas, 231-2;Barrell v. The State, 18 Texas, 729, 730.
The facts in this case are substantially the same as in that of Andrew J. Walker, except that Green Butler said that he did not know the man that was with Walker when he was shot by Walker, nor did any witness recognize him as the person who was there then, and the description so far as given of the person who was with the person who shot Butler, did not correspond with the appearance of Black. It is attempted to be shown that Walker did the shooting, and that another person was there with him acting his part in the matter with Walker, and that Black was seen with Walker at several places, all that afternoon, and in the evening and night before and after the killing, and that therefore Black was the man who was with Walker, aiding in the killing of Butler.
The important question of fact is, was Black the person who was at Butler's with the man who did kill Butler. Whether he was there or not, as may be inferred from the evidence, depends to a great extent upon the consideration of the time Butler was killed, and the time and distance from Butler's, at which he was seen by the witnesses before and after the time Butler was killed, as to which no intimation of opinion will be here given.
The ruling of the court upon the application for a change of venue was the same, upon the same facts, as that in the case of Walker, their application having been made together, they being indicted in the same indictment. They severed on the trial, after their joint application for a change of venue had been overruled.
The charge of court in this case was the same in substance as that in the case of Walker v. The State, except that part of it quoted in the opinion in the Walker case relating to the alibi, which was omitted in the charge of the court in the Black case. What was said in the opinion in the Walker case in relation to the overruling of the application for change of venue, and in relation to the other portions of the charge of the court, except concerning the alibi, need not be here repeated, but reference may be had to that opinion, as applying to this case, with the exception mentioned.
There is another ground of error contained in the bill of exceptions, and in the motion for a new trial, for which also, it is contended, the judgment of conviction should be reversed; and that is, that after the defendant had, in the selection of the jury, exhausted all of his peremptory challenges, his challenge of B. McIllhenny, one of the jurors, for cause, was overruled, and that thereby he was, against his will, and over his objection, tried by a juror, who was not impartial, as shown to the court by the juror's examination under oath.
Our Constitution provides that “in all criminal prosecutions the accused shall have a speedy, public trial, by an impartial jury. (Bill of Rights, Section 8.)
The Code has provided the means of securing an impartial jury, by causing certain questions to be propounded to the juror, for the purpose of ascertaining whether or not he is liable to certain specified grounds of challenge for cause, one of which is as follows: ...
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