Conklin v. State, 22096.

• Decision Date: 27 May 1942
• Docket Number: No. 22096.,22096.
• Citation: 162 S.W.2d 416
• Parties: CONKLIN v. STATE.
• Court: Texas Court of Criminal Appeals

162 S.W.2d 416

CONKLIN v. STATE.

No. 22096.

Court of Criminal Appeals of Texas.

May 27, 1942.

Appeal from Criminal District Court No. 2, Harris County; Langston G. King, Judge.

E. F. Conklin was convicted for exhibiting a gaming device for purpose of gaming, and he appeals.

Reversed and prosecution dismissed.

H. J. Bernard and Kenneth Aynesworth, both of Houston, for appellant.

Dan W. Jackson, Cr. Dist. Atty., and Allie L. Peyton, Thomas M. Ryan, and O'Brien Stevens, Asst. Cr. Dist. Attys., all of Houston, and Spurgeon E. Bell, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

Conviction is for exhibiting a gaming device, to-wit, a marble machine for the purpose of gaming; the punishment assessed being two years in the penitentiary.

(1) When the case was called for trial appellant filed a motion to quash the indictment on the ground that three persons were on the grand jury which returned the indictment each of whom was subject to challenge for cause. It is averred in the motion to quash, and supported by proof, that the grand jury was impaneled on May 5, 1941; that the indictment against appellant was returned on June 25, 1941, wherein it was alleged that the offense with which appellant was charged was committed on or about June 14, 1941, a date subsequent to the organization of the said grand jury. It is further averred and proven that prior to the impanelment of the said grand jury appellant had not been charged by complaint with any offense, had no knowledge of any contemplated investigation by the grand jury, had not been bound over under bail to await the action of said grand jury, and was not present when the said grand jury was impaneled, and that the motion to quash the indictment was the first opportunity appellant had to challenge the qualification of three named members of said grand jury, for the reason that they were not qualified voters in Harris County at the time they were placed on said grand jury.

(2) Art. 358, C.C.P., 1925, provides that "before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror." Appellant brings himself within the rule that where there was no neglect to challenge when the grand jury was being organized, and no waiver of the right to so challenge, that objections to the array or to individual grand jurors may be urged before a trial by motion to quash. Staton v. State, 93 Tex.Cr.R. 356, 248 S. W. 356; Hickox v. State, 95 Tex.Cr.R. 173, 253 S.W. 823; Sumner v. State, 132 Tex.Cr.R. 281, 104 S.W.2d 45, and cases therein cited.

(3) Evidence was heard upon the motion to quash the indictment, and the following facts established. There were about 50,000 adult male citizens, residents of Harris County who had paid their poll taxes, or had exemptions entitling them to vote without payment of poll tax at the time the grand jury which returned the indictment against appellant was impaneled; the three grand jurors who were alleged to be subject to challenge were each shown to be between 21 and 60 years of age, and that they had not paid their poll taxes which would have entitled them to vote in 1941, and that none of them came within any of the exemptions which would have entitled them to vote without payment of the poll tax; one of the three grand jurors, before he was impaneled, advised the trial judge that he had not paid his poll tax, but said judge thought the payment of the poll tax to be unnecessary.

(4) Art. 362, C.C.P., 1925, provides that a challenge to a particular grand juror may be made orally for the following causes. "1. That he is not a qualified grand juror."

(5) Art. 339, C.C.P., 1925, in so far as here applicable reads as follows:

"No person shall be selected or serve as a grand juror who does not possess the following qualifications:

"1. He must be a citizen of the State, and of the county in which he is to serve, and qualified under the Constitution and laws to vote in said county; but, whenever it shall be made to appear to the court that the requisite number of jurors who have paid their poll taxes can not be found within the county, the court shall not regard the payment of poll taxes as a qualification for service as a juror."

We have emphasized the part of said article especially here pertinent to prevent repetition later. Appellant bases his challenge to the three grand jurors heretofore referred to upon that part of the foregoing article which is italicized, because it is shown that at the time they were placed upon the grand jury many more than the requisite number of grand jurors were available who had paid their poll tax, and it is asserted that the court could not properly use non-poll tax payers on the grand jury as long as poll tax payers could be found.

(6) The importance of the question, as well as aid in solving it, is our reason for relating the legislative history of said Art. 339 and others akin to it.

After the adoption of the Constitutional Amendment in 1902 requiring payment of poll tax as a qualification for voting — unless the voter was for some reason exempt from such payment — the 1st C.S. of the 28th Leg. in 1903, Ch. 9, p. 15, amended by specific reference Art. 3139, R.C.S. (now Art. 2133) Art. 378, C.C.P. (now 339), Art. 393, C.C.P. (now 354), Art. 668, C.C. P. (now 612), Art. 673, C.C.P. (now 616), adding to each article so amended the italicized portion of present Art. 339, C.C. P., as hereinbefore set out. In 1904 the case of Taylor v. State, 47 Tex.Cr.R. 101, 81 S.W. 933, reached this court. The case called for a construction of the Act of the Special Called Session of the Legislature above referred to as it related to petit, or trial jurors. The question of grand jurors was not involved. It was held that the language found in the italicized portion of the articles relating to petit jurors did not authorize the court to dispense with the poll tax qualification where it was shown that there were many qualified poll tax paying jurors in the county. In 1905 (the next year after the Taylor case was decided), the 29th Legislature, R.S., Ch. 107, p. 207 by particular reference amended Art. 3139, R.C.S., providing that failure to pay a poll tax should not disqualify a person for jury service in any instance. Although the provision of the Act of the Special Called Session of the 28th Leg., which the Act of 1905 was designed to correct or modify had included the articles of the Code of Criminal Procedure heretofore referred to, the Act of 1905 did not amend then Arts. 378 and 393, C.C.P. regarding qualifications of grand jurors, nor then Arts. 668 and 673, C.C.P. regarding the qualifications of petit jurors, in capital cases. In 1907 the case of King v. State, Tex.Cr.App., 100 S.W. 387, 390, was decided. The...