Campbell v. State

• Decision Date: 13 February 1892
• Citation: 18 S.W. 409
• Parties: CAMPBELL v. STATE.
• Court: Texas Court of Appeals

Page 409

18 S.W. 409

CAMPBELL v. STATE.

Court of Appeals of Texas.

February 13, 1892.

Appeal from district court, Mason county; W. M. ALLISON, Judge.

Indictment against G. W. Campbell for murder. There was judgment of conviction, and defendant appeals. Reversed.

Triplett & Lewis, M. Fulton, and E. Light, for appellant. Richard H. Harrison, Asst. Atty. Gen., and Leigh Burleson, for the State.

WHITE, P. J.

Appellant was indicted in the district court of San Saba county for the murder of one Edward R. Hartman. The district judge, of his own motion, owing to the fact, as stated by him, that a trial alike fair to the accused as well as the state could not be had in either the counties of San Saba or Mills, the latter being the next nearest court-house to the court-house of San Saba, "owing to influential combinations which would deter witnesses from testifying fully and freely," changed the venue of the case to Mason county. On the trial in the district court in Mason county appellant was found guilty of murder in the second degree, his punishment being fixed at five years in the penitentiary.

Defendant's first bill of exceptions complains that he was not served with a copy of the special venire one whole day prior to the time he was placed upon trial. It appears from the bill that at the time the special venire was returned by the sheriff, on the morning of the 9th day of March, the defendant was on bail, and not confined in jail. The clerk immediately made out a list of the names of the jurors summoned on said special venire, and furnished the same to the counsel for defendant. Defendant, not being in jail at the time his counsel were furnished with this list, could not claim further exemption from liability from trial for longer than one day. Code Crim. Proc. art. 617. After defendant's counsel had been served with a list of the special venire, defendant was rearrested on motion of the district attorney, because his bail was insufficient in amount, and placed in jail on the evening of the 9th of March. It is further made to appear that on the 10th day of March the defendant, after he was placed in jail, was also served with a copy of the special venire. The defendant was not put upon trial until March 12th. The objection as to the service of the copy of the venire is not well taken. But it is further objected that in the copy served upon him the name of one of the jurors, to-wit, Henry Hasse, who had been summoned as a juror, was omitted; that the juror was present; and while the other jurors were being impaneled it was discovered that the name of Henry Hasse was omitted from the list served upon the defendant in person. After all the names on the copy of the list served upon the defendant had been exhausted, Henry Hasse was called, and was tendered for examination as a juror, but the defendant objected, because his name was not on the list served upon him; whereupon he was stood aside by the court, and the sheriff instructed to summon 15 talesmen to complete the jury, which having been done, and Henry Hasse being one of the 15 talesmen summoned by the sheriff, defendant asked that the list of talesmen be set aside, because Henry Hasse was one of same, which was refused by the court. In his explanation of this bill of exceptions the learned trial judge says that the juror Henry Hasse, on his voir dire examination as a talesman, stated that he could neither read nor write the English language, and for this cause was challenged by the state, and the court sustained the challenge, to which the defendant excepted. We see no error in the ruling of the court in this matter.

By defendant's third bill of exceptions it is shown that on redirect examination of its witness Nat Hartman the state was permitted, over objection of the defendant, to ask this witness, "What was the reason you held up Campbell and the other boys, Trowbridge and Stovall, and wanted to keep the drop on them, when you met them in...