Butler v. State

• Decision Date: 05 October 1927
• Docket Number: (No. 10877.)
• Citation: 299 S.W. 420
• Parties: BUTLER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 420

299 S.W. 420

BUTLER v. STATE.

(No. 10877.)

Court of Criminal Appeals of Texas.

October 5, 1927.

Rehearing Denied November 23, 1927.

Commissioners' Decision.

Appeal from Calhoun County Court; E. M. Tanner, Judge.

Tom Butler was convicted of possessing and carrying a seine and net within prohibited territory, under Pen. Code 1925, art. 942, and he appeals. Affirmed.

Edward L. Dunlap, of Victoria, for appellant.

Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.

MARTIN, J.

An information was filed against appellant under article 942 of the Penal Code, charging him with unlawfully possessing and carrying a seine and net within certain prohibited territory therein particularly set out. Appellant was convicted and his punishment assessed at a fine of $25 and confinement in jail for 30 days.

Motion was made to quash the aforesaid information because same did not set forth the offense in plain and intelligible words, because same was duplicitous, and because same did not negative the exceptions contained in articles 942 and 943 of the Penal Code.

The information appears to be in the language of the statute and charges conjunctively a violation of said article 942 in three different ways, all included within the terms of said article and all punishable in the same manner. There is no uncertainty of meaning as to the offense intended to be charged. This information seems to meet the requirements laid down by this court. Branch's P. C., § 510, p. 263, and section 506, p. 259, for full collation of authorities.

Objection was made by appellant to the prosecution of the case against him by an attorney appointed by the court. His bill of exception shows that there was no county attorney of Calhoun county and that the district attorney was absent. Article 31 of the Code of Criminal Procedure expressly authorizes the appointment of an attorney to represent the state when the district or county attorney fails to attend any term of the district, county, or justice court. The information was filed in this case by the district attorney of Calhoun county. Under these facts, the court did not err in appointing an attorney to prosecute the case. Younger v. State, 76 Tex. Cr. R. 243, 173 S. W. 1039.

It seems that when this case was called for trial the court ordered the sheriff to summons twelve qualified jurrors to appear for jury service, and that such number did appear in obedience to said summons. By various bills of exception appellant attempts to raise the point that he could not be legally tried before the jury thus summoned, claiming that he was entitled to have a jury selected by a jury commission as provided by the statute. By express provision of article 640 of the Code of Criminal Procedure, the court is authorized to order the sheriff to summons such number of qualified persons as it may deem sufficient when for any cause there are no regular jurors for the week. It has been held that, where the county judge intentionally refuses to appoint jury commissioners to select jurors for the term, a substantial right is denied a person who is tried by a jury selected by a sheriff. White v. State, 45 Tex. Cr. R. 597, 78 S. W. 1066. This rule does not apply when through inadvertence or oversight there has been a failure to select jurors by means of jury commissioners. Hurt v. State, 51 Tex. Cr. R. 338, 101 S. W. 806.

The bills of exception taken fail to show that there was an intentional disregard of the statute for the appointment of jury commissioners, and we would have no right to assume, in the absence of such showing, that the county judge had violated his duty and deliberately refused to comply with the terms of the law.

Believing that the record fails to show error and that the evidence is sufficient to support the verdict, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

In his motion for rehearing appellant insists that by both this court and the trial court he has been denied a substantial right in the overruling of his challenge to the array of jurors. The point made is that the jurors were not selected by a jury commission, but summoned by the sheriff, and that the failure to appoint a jury commission entitled the appellant to set aside the panel. The right to challenge the array and the procedure therefor is set out in articles 608, 609, and 641, C. C. P. 1925. The trial judge seems to have been of the opinion that the motion could be sustained only by proof that the sheriff had acted corruptly, and that such proof the appellant disclaimed an intention to tender. Such, it is true, is the language of the statutes mentioned, but in instances where the statutory method of selecting jurors has been arbitrarily disregarded, a motion to set aside the panel will be entertained, and upon sufficient facts sustained. This is the ruling in White v. State, 45 Tex. Cr. R. 597, 78 S. W. 1066.

Considering bill No. 8, upon which reliance is had to present the question, in connection with the affidavits filed challenging the array, we find that the appellant set up the fact that no jury commissioners had been appointed, and, calling attention to ...