Click v. State, 14591.

• Decision Date: 23 December 1931
• Docket Number: No. 14591.,14591.
• Citation: 44 S.W.2d 992
• Parties: CLICK v. STATE.
• Court: Texas Court of Criminal Appeals

44 S.W.2d 992

CLICK v. STATE.

No. 14591.

Court of Criminal Appeals of Texas.

December 23, 1931.

Commissioners' Decision.

Appeal from District Court, Taylor County; M. S. Long, Judge.

E. A. Click, Jr., was convicted of forgery, and he appeals.

Reversed and remanded.

T. A. Bledsoe, of Abilene, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CALHOUN, J.

The offense is forgery; the punishment, confinement in the penitentiary for two years.

Briefly, the facts are that one Jim Price was in possession of a check which he attempted to cash, and, upon suspicion being aroused by his conduct in relation to the matter, he was arrested. He implicated the appellant, and testified on the trial that appellant wrote the check while he was present and by agreement between them, and, after it was written, he attempted to cash it. To corroborate the accomplice Price, the state introduced B. L. Ellis, a banker, who testified that in his opinion the forged check found in possession of Price was written by the same person who wrote a specimen of writing shown him, which specimen of writing had been written by the appellant at the instance of the county attorney.

Before announcing ready for trial, appellant filed a motion to quash the jury panel, which was overruled. It appears that the members of the panel had been selected by three jury commissioners appointed by the court. These jury commissioners drew such jury panel in the manner provided by law for drawing jury panels for counties not having within them any city containing a population of 20,000 or more people. The motion to quash directed the trial court's attention to the fact that the city of Abilene in the county of the prosecution had a population of 23,175 according to the official count of the returns of the fifteenth census of the United States on file in the Bureau of the Census. Appellant sought a jury drawn in accordance with the provisions of article 2094, Revised Statutes of 1925, as amended by the Acts of the 41st Legislature (1929), c. 43, § 1, (Vernon's Ann. Civ. St. art. 2094), which provides for the jury wheel system in counties having a population of at least 58,000 or having therein a city of at least 20,000 population as shown by the preceding federal census. It appears from the bill that there was produced before the court in support of said motion a document as follows:

                          "Department of Commerce
                  "Bureau of the Census, Washington, D. C
                                        "January 19, 1931
                

"I hereby certify that according to the official count of the returns of the Fifteenth Census of the United States, on file in the Bureau of the Census, the population of the city of Abilene, County of Taylor, State of Texas, taken as of April 1, 1930, is twenty-three thousand one hundred and seventy-five (23,175).

"W. M. Steward, Director of the Census.

"[Government seal of U. S. Department of Commerce, Bureau of the Census.]"

The effect of the census as taken of April 1, 1930, was to place the county of the prosecution under the provisions of article 2094, Revised Statutes, 1925, as amended. The motion to quash the jury panel should have been sustained.

The exact question herein involved has been decided in the case of Claude Ervin, Appellant v. State (Tex. Cr. App.) 44 S.W.(2d) 380, appealed from Taylor county, not yet officially reported, in an opinion delivered June 10, 1931, wherein it was held that the motion to quash the jury panel should have been sustained, and the refusal to do so was reversible error. Motion for rehearing in said case was overruled in an opinion delivered December 16, 1931. The question was fully discussed both in the original opinion by Judge Christian and in the opinion by Presiding Judge Morrow on motion for rehearing, and further discussion is unnecessary.

By bills of exception 2 and 3, appellant presents to this court the question of whether or not the testimony of the county attorney as to the writing of a specimen check by the appellant in his office, and the testimony of the banker Ellis as to his opinion that such specimen check so written and the alleged forged checks were made by the same person, was inadmissible against the objection that such testimony relating to such checks was requiring the appellant to give evidence against himself. The objection to such testimony is very lengthy, but is to the effect that the evidence showed that the appellant was required by the...