Clark v. State

Decision Date30 March 1955
Docket NumberNo. 27497,27497
PartiesJohn CLARK, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

No attorney on appeal.

Leon Douglas, State's Atty., Austin, for the State.

DAVIDSON, Judge.

This is a conviction for cutting merchantable timber upon the land of another without the consent of the owner, with punishment assessed at three years in the penitentiary.

The record affirmatively reflects that, during the trial of the case and during the introduction of testimony, it was made known to the trial court that the wife of one of the jurors in the case was seriously ill. The trial court communicated to and discussed such fact with both counsel for the state and for the appellant and, as a result, all parties, including the appellant in person, agreed to excuse the juror in order that he might be with his sick wife. It was also agreed that the trial might proceed to final determination before the remaining eleven jurors.

The Constitution provides that a jury in the district court shall be composed of twelve jurors, Art. 5, Sec. 13, Vernon's Ann.St., and that the right of trial by jury shall remain inviolate, Art. 1, Sec. 15.

Art. 11, Vernon's C.C.P., provides that the right of trial by jury cannot be waived in a felony case when there is a plea of not guilty.

Art. 687, Vernon's C.C.P., provides that 'Not less than twelve jurors can render and return a verdict in a felony case.' An essential element, then, of the right of trial by jury, in a felony case, is that the jury must be composed of twelve jurors. Randel v. State, 153 Tex.Cr.R. 282, 219 S.W.2d 689.

In an unbroken line of cases this court has consistently held that the defendant cannot waive the right of trial by jury in a felony case when he pleads not guilty. Dunn v. State, 88 Tex.Cr.R. 21, 224 S.W. 893, and authorities there listed: Jones v. State, 52 Tex.Cr.R. 303, 106 S.W. 345; Stell v. State, 14 Tex.App. 59; Lott v. State, 18 Tex.App. 627; Jester v. State, 26 Tex.App. 369, 9 S.W. 616; McCampbell v. State, 37 Tex.Cr.R. 607, 40 S.W. 496; Ex parte Reynolds, 35 Tex.Cr.R. 437, 34 S.W. 120; Ex parte Ogle, Tex.Cr.App., 61 S.W. 122.

A judgment in a felony case where there is a plea of not guilty, based upon a verdict of only eleven jurors, is absolutely void. Dunn v. State, 92 Tex.Cr.R. 126, 242 S.W. 1049.

There is no escape from the conclusion that the judgment in this case is void, because the trial was by a jury...

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12 cases
  • Ex parte Johnson
    • United States
    • Texas Court of Criminal Appeals
    • October 9, 1985
    ...district court means a jury composed of 12 jurors. Such is the requirement of the Constitution of Texas, Art. V. § 13. Clark v. State, Tex.Cr.App., 276 S.W.2d 819 [1955]." Houston v. State, 162 Tex.Cr.R. 551, 287 S.W.2d 643, 652 (Tex.Cr.App.1956), cert. denied 351 U.S. 975, 76 S.Ct. 1042, 1......
  • Ex parte Little
    • United States
    • Texas Court of Criminal Appeals
    • November 2, 1994
    ...387, 285 S.W.2d 733 (1956) ("A verdict of less than 12 jurors will not support a valid judgment."), and, Clark v. State, 161 Tex.Crim. 278, 276 S.W.2d 819, 820 (1955) ("[T]he judgment in this case is void, because the trial was by a juror composed of only eleven jurors who returned the verd......
  • Bates v. State
    • United States
    • Texas Court of Appeals
    • October 6, 1992
    ...had, in addition to the expressed and intelligent consent of the defendant. Samudio, 648 S.W.2d at 313. The case of Clark v. State, 161 Tex.Crim. 278, 276 S.W.2d 819 (1955), adds weight to this conclusion. In Clark, the Court said that a jury of twelve in felony cases is an essential elemen......
  • Hanley v. State, 14-93-00559-CR
    • United States
    • Texas Court of Appeals
    • August 31, 1995
    ...or absence of manifest necessity to support a mistrial is moot. Therefore, we need not reach these issues.4 Compare Clark v. State, 276 S.W.2d 819, 820 (Tex.Crim.App.1955) (a judgment in a felony case where there is a plea of not guilty, based upon a verdict of only eleven jurors, is absolu......
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