Crow v. State

• Decision Date: 06 April 1921
• Docket Number: (No. 5942.)
• Citation: 230 S.W. 148
• Parties: CROW v. STATE.
• Court: Texas Court of Criminal Appeals

230 S.W. 148

CROW v. STATE.

(No. 5942.)

Court of Criminal Appeals of Texas.

April 6, 1921.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

Tom Crow was convicted of murder by poison, and he appeals. Reversed and remanded.

See, also, 230 S. W. 147.

Mauermann & Hair, Joe H. H. Graham, and Hobart Huson, all of San Antonio, for appellant.

W. C. Linden and W. S. Anthony, Asst. Dist. Atty., both of San Antonio, and Alvin M. Owsley, Asst. Atty. Gen., for the State.

HAWKINS, J.

The appellant was convicted of the murder by poison of Mrs. Ora Parker, and his punishment assessed at death.

The deceased and appellant lived in San Antonio, and had been acquainted with one another for a number of years. Mrs. Parker, at the time of her death, was living with her husband, F. E. Parker, and a young daughter of F. E. Parker by a former marriage, and Miss Leila Polan also occupied a room in the Parker home. On January 23, 1920, the deceased came to the mercantile establishment where Miss Polan was employed, and the two left there together and went to the office of a chiropractor for treatment; and while on this trip the deceased bought a loaf of bread and some eggs, and some candy for the little girl, after which she and Miss Polan returned to the store. Miss Polan resumed her work, and the deceased left, intending to go to the office of a Dr. Ross, which she seems to have done. After leaving his office she seems to have gone with appellant in an automobile, and after that time was never seen alive. Five days later her body was discovered in the San Antonio river. She was in the habit of wearing diamond rings and diamond earscrews, and when her body was discovered all of this jewelry was missing. For some reason, undisclosed in the record, suspicion seems to have pointed towards this appellant, and he was arrested in the city of Houston. From statements made by him, one of the diamond rings was found in San Antonio, where he had sold it, and the other jewelry was found in an old shoe in a room he had occupied in Houston. Appellant denied having killed the deceased, but admitted that they had been out driving, and that she died suddenly while in his company, and that he took her rings and other jewelry after her death and threw the body in the San Antonio river. Upon an examination and analysis of the contents of deceased's stomach, it was determined that her death resulted from sodium cyanide. Appellant, upon being interrogated as to the probable cause of deceased's death, claims to have found upon the seat of the car that he and deceased occupied on the evening of her death a small box containing a powder, which he told the officers they would find in his (appellant's) trunk. As a result of this information this box was found and the contents discovered to be the same kind of poison found in the stomach of deceased. It was the theory of the state that appellant had administered the poison to deceased in brandy; it was the theory of the appellant that deceased had committed suicide. In support of the suicide theory, appellant offered a witness who testified that upon one occasion in the presence of deceased they were discussing the suicide of a friend of the witness, and that he said he understood that the suicide was committed by the use of sodium cyanide, and that later on deceased asked him to secure some of this poison for her, which he claims to have done, and delivered to her. It is not necessary to make a more extensive statement of the facts than has already been hereinbefore set out.

We are met right at the threshold of this case with an assignment of error which, in our opinion, will necessitate a reversal. After two jurors had been selected, the third juror accepted by both the state and defendant was one Harper, a negro. It appears from the record that the two jurors who had already been selected were white men, and that they began to make objections to the court at having to sit upon a jury with a negro. After the juror Harper was sworn, three other white jurors were selected and sworn in the case, and after court had adjourned for the day and the appellant had been taken back to jail, some conversation arose between the special prosecutor for the state, the attorneys representing the appellant, and the trial judge, with reference to the negro juror, Harper, and the complaint that was being made by the other jurors. The special prosecutor and the attorneys for appellant agreed that Harper might be excused, and the judge suggested that he have the defendant brought back into court and the jury returned to court and the matter be disposed of regularly in that way; the judge says counsel for appellant assured him that it was not necessary to do this as the question would never be raised, and agreed that he should direct the deputy sheriff to excuse the juror Harper, which was done. The appellant at this time was not present, but was in jail, and, so far as the record discloses, had no knowledge of what had been done until court opened the next morning. Subsequent to this proceeding another attorney entered the case for appellant and notified the district attorney that he would not be bound by the agreement his cocounsel had made, but reserved the right to raise the question of the excuse of the juror Harper at any time he saw proper. The jury was completed, and the trial proceeded, with the result as heretofore indicated; and the action of the trial court is now before us upon this question for review. It becomes the duty of this court to determine the legal phase of the matter only. We will not discuss the effect of a personal assent by the defendant to the discharge of a juror already sworn, nor the effect of agreement thereto by his counsel in open court in defendant's presence. These issues do not arise in this case. Court was not in session, and the defendant was absent, when the proceeding complained of was had. The exact question now before this court is:

"After a juror is impaneled in a capital case, can the trial judge excuse such juror, in the absence of the defendant?"

When was the juror Harper impaneled, and what was the effect of his discharge under the circumstances?

In Sterling v. State, 15 Tex. App. 249, after six jurors were sworn one of them, McFarlane, advised the court that some of his family was ill, and requested permission to go home and spend the night. Defendant and his counsel agreed that he might go with an officer; but the court insisted that they agree to a discharge of said juror; finally defendant's counsel did agree, and defendant, being present, made no objection, and the juror was discharged. Judge Willson, speaking for this court in reviewing the incident, said:

"It has been settled by the decisions of this court that when a juror has been sworn in a capital case he is impaneled, and must remain upon the jury to the termination of the trial. The court has no power to excuse a juror impaneled in a felony case. In case of sickness or accident rendering it impracticable to proceed with the trial of the case before the jury as then constituted, the only course the court can take is to discharge the jury and to proceed to form another. Hill v. State, 10 Texas Ct. of App. 618; Ellison v. State, 12 Texas Ct. App. 557. True, the defendant might waive the provisions of the law requiring jurors impaneled to be kept together until the termination of the trial, etc. (Code Crim. Proc. art. 23); but such waiver must be expressly made by the defendant himself, and cannot be made by his counsel so as to bind him, nor can his mere silence or failure to object be construed to be a waiver by him. Early v. State, 1 Texas Ct. App. 248; Hill v. State, 10 Texas Ct. App. 618. We think the court erred in discharging the juror McFarlane."

In the Ellison Case, supra, one of the jurors became ill after 11 had been chosen and sworn; the district attorney consented for the trial judge to discharge him, but the defendant withheld his consent. The court did discharge him, and proceeded with the formation of the jury. Judge Willson speaks for this court substantially as he did in the Sterling Case, supra, saying:

"When a juror in a capital case has been sworn, he is impaneled, and must remain upon the jury to the termination of the trial. * * * It is our conclusion, and we so hold, that, after a juror has been once impaneled in a felony case, it is beyond the power of the court to excuse him from serving in the case, and that in case of sickness or accident rendering it impracticable to proceed with the trial of the case before the jury as then constituted, the court should discharge that jury, and proceed to form another for the trial of the case. This precise question was before this court in the case of Hill v. State, 10 Texas Ct. App. 618, and was ably discussed by Judge Hurt, and the conclusion arrived at that it was fatal error for the court, of its own motion, to discharge a juror who had been impaneled in a case."

We quote from Rippey v. State, 29 Tex. App. 37, 14 S. W. 448, which was a felony case less than capital, and the following proceedings were had, to wit:

"(2) On the first day of the trial seven men were selected as jurors, and the court was adjourned until the next morning to enable the sheriff to procure talesmen from the country. As a matter of precaution the court had the regular jury oath administered to these seven jurors who had been passed upon and selected by the parties, and they were then placed in charge of an officer. On the next morning one of these seven men was found to be so ill as to be unable to sit as a juror, and the court, without the defendant's consent, discharged him. Defendant's counsel then moved the court to discharge the jury, that is the other six jurors, and continue the case, which motion was overruled and the jury filled out with the talesmen who had been summoned. * * * The objection to this proceeding is that after a person...