Davis v. State

• Decision Date: 26 February 1908
• Citation: 108 S.W. 667
• Court: Texas Court of Criminal Appeals
• Parties: DAVIS v. STATE.

108 S.W. 667

DAVIS v. STATE.

Court of Criminal Appeals of Texas.

February 26, 1908.

Rehearing Denied March 20, 1908.

Appeal from Criminal District Court, Galveston County; J. K. P. Gillaspie, Judge.

Pros Davis was convicted of theft from the person, and appeals. Affirmed.

Marsene Johnson and Aubrey Fuller, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of theft from the person, and his punishment assessed at two years' confinement in the state penitentiary.

Bill of exceptions No. 1 shows the following: In support of his motion to quash the panel of jurors tendered him for selection, appellant offered to prove by Hon. Edwin Bruce, clerk of the criminal district court of Galveston county, Tex., that he was not present when said names, or any of them, were drawn from the jury wheel provided by law for that purpose, and that he had at that time no deputies; and, further, defendant offered to prove in this connection by the sheriff of Galveston county that said sheriff on the second day of said court, and in the week in which defendant was tried, summoned six of the jurors whose names appeared on the list as talesmen, and that the names of said six persons had not been drawn out of the jury wheel provided by law for that purpose by any person. Whereupon the court overruled defendant's said motion to quash said panel of jurors and forced the defendant to select the jury from the names tendered him. This bill has the following qualification: "The jurors drawn from the wheel was done by myself, judge of said court, the district clerk of Galveston county (J. C. Gengler), and a deputy sheriff of said county, and regularly drawn, as the court construed the law to mean. The talesmen were summoned by the sheriff, who had first been sworn to do so, and in accordance with law." The condition of this bill, we hold, in the first place, is defective, in that it says appellant "offered to prove," and does not say he would have proved, or that he did prove. Furthermore, with the qualification of the court, there could have been no error in the ruling complained of. The bill being defective, we are not called upon to pass upon the validity of the law.

Bill of exceptions No. 2 complains that appellant objected to the proof offered by the state that appellant was convicted in 1901 of a felony and served a term of 2 years in the state penitentiary; the objection to said testimony being that it was too remote to...