Carter v. State

• Decision Date: 08 June 1898
• Parties: CARTER v. STATE.
• Court: Texas Court of Criminal Appeals

46 S.W. 236

CARTER v. STATE.

Court of Criminal Appeals of Texas.

June 8, 1898.

Appeal from district court, Galveston county; E. D. Cavin, Judge.

Seth Carter was convicted of murder in the first degree, and appeals. Affirmed.

Wilford H. Smith, for appellant. Mann Trice, for the State.

DAVIDSON, J.

The indictment charged appellant with killing Bertha Brantley by shooting her with a pistol; he was convicted of murder in the first degree, his punishment assessed at death, and prosecutes this appeal.

When the case was called for trial, a motion was made to quash the indictment because the jury commissioners had not drawn persons of African descent as jurors to serve upon the grand jury. Article 559, Code Cr. Proc. 1895, provides: "A motion to set aside an indictment or information shall be based on one or more of the following causes, and no other: (1) That it appears by the record of the court that the indictment was not found by at least nine grand jurors; * * * (2) that some person not authorized by law was present when the grand jury were deliberating upon the accusation against the defendant, or were voting upon the same." If this motion has any merit in it at all, it relates, not to the substance of the indictment, but to the manner of its finding and presentment. So it will be seen, by the very terms of the statute itself, that the fact that people of African descent were not drawn by the commissioners to serve as jurors upon the grand jury is not a ground for setting aside an indictment. Article 397 of the Code of Criminal Procedure of 1895 provides: "Any person, before the grand jury has been impaneled, may challenge the array of jurors, or any person presented as a grand-juror, and in no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall, upon his request, be brought into court to make such challenge." Appellant does not undertake to bring himself within the purview of this statute. His motion was to quash the indictment. If there were any objections to the grand jury, or any member of it, they should have been exercised by challenge, either to the array, or to a particular member of said body. See Barber v. State (decided at the present term) 46 S. W. 233. The question of challenge to the array, or to a particular juror, is not suggested, nor is it shown that he was debarred this right. It is too late, after indictment found, to question the manner of impaneling a grand jury.

Motion was also made to quash the special venire because the jury commissioners had not selected any persons of African descent to serve as jurors upon the trial of cases to be tried at the succeeding term of the court after the jurors were drawn by said jury commissioners. This was urged in the nature of a challenge to the array. Article 661 of the Code of Criminal Procedure of 1895 provides: "The defendant may challenge the array for the following causes only: That the officer summoning the jury has acted corruptly, and has wilfully summoned persons upon the jury known to be prejudiced against the defendant with a view to cause him to be convicted." This statute only applies when the jurors have been selected by the sheriff, and not drawn by the jury commissioners; for article 662 declares that: "The two preceding articles do not apply when the jurors summoned are those who have been selected by jury commissioners. In such case no challenge to the array is allowed." This is not a novel question in this state. As far back as 44 Tex., it was held that, where the defendant is a negro, it is not a ground of challenge to the array that it is composed of white men exclusively. Williams v. State, 44 Tex. 34. So it has been held that it is not a ground for a motion to quash a special venire, or of challenge to the array, that the jury commissioners selected jurors solely from persons known to be not equals of the accused, but his superiors. See Cavitt v. State, 15 Tex. App. 190. There was no error on the part of the court with reference to either of the above bills of exception.

On the trial, and while Dennis Brantley was upon the witness stand, the state introduced a drawing made by said witness. This drawing is a map or diagram of the house where the killing occurred, and is shown to be correct. The objection urged was that the drawing was made by an interested person, and was not correct; but the testimony shows, without contradiction, that it was correct. It is immaterial who made the map or diagram,—whether an interested or disinterested party. If the map was not a correct one, this fact could be shown; and the defendant, if he desired, could attack the map by showing its incorrectness, and supply the defects by putting in evidence one of his own. So far as we are advised, it has always been held proper and legitimate, for the purpose of explaining the testimony of the witness, and rendering it more intelligible than it would have been otherwise, to introduce diagrams, maps, and plats. It also serves the purpose of enabling the jury to better understand and apply the evidence with reference to various localities spoken of by the witnesses. This question underwent an investigation in the case of Rodriquez v. State, 32 Tex. Cr. R. 259, 22 S. W. 978, and it was there held that such maps could be properly introduced in evidence.

The state introduced the witness ...