Burk v. State

• Decision Date: 23 November 1927
• Docket Number: (No. 11146.)
• Citation: 300 S.W. 945
• Parties: BURK v. STATE.
• Court: Texas Court of Criminal Appeals

300 S.W. 945

BURK v. STATE.

(No. 11146.)

Court of Criminal Appeals of Texas.

November 23, 1927.

Rehearing Denied January 4, 1928.

Appeal from District Court, Panola County; R. T. Brown, Judge.

William Burk was convicted of unlawful manufacture of intoxicating liquor, and he appeals. Affirmed.

J. G. Woolworth and B. W. Baker, both of Carthage, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MORROW, P. J.

The offense is the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year and six months.

From bill of exceptions No. 1, as qualified, we understand that, at the term preceding the March term of the district court, jury commissioners were appointed to select grand and petit juries for the March term; that, after they had performed that service, and had been discharged, the judge concluded to call a special term of court to begin on the 2d day of May, and, upon entering the order for the convening of the special term (which order was made on April 5th), the court appointed jury commissioners to select persons to compose the grand and petit juries for the special term of court. Claiming that the procedure mentioned was violative of the statutory provisions relating to the subject of the selection of juries, the appellant sought to quash the array, pointing to articles 1921 and 2104 of the Revised Civil Statutes 1925, and article 333, C. C. P. 1925. Article 640, C. C. P. 1925, may also be taken into account in considering the point made. From that article we quote:

"When, from any cause, there are no regular jurors for the week from whom to select a jury, the court shall order the sheriff to summon forthwith such number of qualified persons as it may deem sufficient; and, from those summoned, a jury shall be formed."

Touching this subject, in a recent case the following remarks were made:

"This court has held, where there was an arbitrary refusal to appoint jury commissioners at the previous term, that advantage might be taken of such failure by one on trial for the succeeding term. See Woolen v. State, 68 Tex Cr. R. 189, 150 S. W. 1165. Where the failure to appoint jury commissioners at the previous term was by inadvertence, or for some good cause, complaint of it is not tenable, but the judge at the succeeding term would have the privilege of supplying a jury either by the appointment then of jury commissioners or supplying a jury under the terms of article 640, supra, or article 2108, R. S. 1925. See Ex parte Holland, 91 Tex. Cr. R. 343, 238 S. W. 654; Sanchez v. State, 94 Tex. Cr. R. 606, 252 S. W. 548; Gray v. State, 99 Tex. Cr. R. 305, 268 S. W. 941, 269 S. W. 1056; Bennett v. State, 95 Tex. Cr. R. 422, 254 S. W. 949. One who would take advantage of the failure to appoint jury commissioners must assume the burden of showing that the failure was not for good cause. Sanchez v. State, supra. It has been held that if, during a regular term, a special term is called to convene after adjournment of the regular term and the necessity for a jury commission is not foreseen by the regular judge, and he, for that reason, omits the appointment of jury commissioners, the judge presiding at the special term may proceed to secure a jury either by the appointment of jury commissioners or by an order summoning jurors by the sheriff, as provided in article 640, supra. See King v. State, 90 Tex. Cr. R. 289, 234 S. W. 1107; Sanchez v. State, supra." Avery v. Millikin et al. v. Hon. M. C. Jeffrey, Dist. Judge (No. 11448; Tex. Cr. App.) 299 S. W. 435, not yet [officially] reported.

In the present instance, the court at the regular term (at the time that he called the special term) having appointed jury commissioners by whom the list from which the jury which tried the appellant was drawn, we are unable to perceive any substantial departure from the procedure prescribed by statute.

In bill No. 2, the sufficiency of the court's charge is assailed upon several grounds: First, that the facts called for no charge on the law of principal offender; second, that the charge did not embrace the affirmative defense of the appellant, namely, that his presence was that of a mere bystander; third, that the converse of the law of principals was not embodied in the charge; fourth, that the jury was not instructed that the mere presence of the appellant would not warrant his conviction. In qualifying the bill, the court refers to subdivisions 1, 3, 4, 5, and 6 of the court's charge as meeting the objections mentioned.

From the statement of facts, it appears that the state's witness observed a still upon the Adams' place, at which there were four persons present; namely, Collier, Adams, Davis, and (Burk) the appellant. According to the witness, they had a complete equipment for manufacturing intoxicating liquor, and had manufactured about 5 gallons of whisky. To quote him:

"In other words, they had run one barrel when we got there, and was filling it the second time when we got there."

The barrels containing the mash were each of a 50-gallon capacity. The appellant and Adams were seen by the witness carrying mash from one of the barrels to the still. The still was located in a small pine thicket. Upon the arrival of the officers, all the parties ran, except Davis, who was crippled.

There was evidence that the still belonged to Alex Adams, who was one of the persons present, but who at the time of the trial was dead.

The appellant introduced witnesses to the effect that his reputation as a law-abiding citizen was good prior to the transaction in question. He testified that he lived about three-fourths of a mile from the Adams' place; that at the time of the raid he had been there 10 or 15 minutes; that, when he arrived at the still, Alex Adams and Mat Collier were there, and that he had no interest in the still, whisky, or mash. He claimed...