Davis v. State

Decision Date24 November 1926
Docket Number(No. 10005.)
Citation288 S.W. 456
PartiesDAVIS v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Hopkins County; J. M. Melson, Judge.

Willie Davis was convicted of theft, and he appeals. Reversed and case ordered dismissed.

Ramey & Davidson, of Sulphur Springs, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.


The appellant was convicted in the district court of Hopkins county for the offense of theft, and his punishment assessed at three years in the penitentiary.

The record discloses that the term of court, at which the instant indictment was returned, began on the 24th day of August, 1925, the indictment was filed September 18, 1925, and court adjourned on October 3, 1925. The indictment charges that the offense occurred on the 14th day of September, 1925. The appellant was tried and convicted on the 29th day of September, 1925.

In bill of exception No. 1 it is shown that, when this case was called for trial and before the appellant announced ready on the merits, he presented his motion to quash and dismiss the indictment herein because same was returned by an illegal grand jury, averring that at the last-preceding term of court the honorable district judge of said court, after he had selected his jury commissioners and duly impaneled them to draw the grand jury for the August term, 1925, of said court, and before the list of said grand jurors had been sealed, conferred with said commissioners and struck four names from the list drawn and selected by the commissioners on the ground that such persons were objectionable to him, and instructed the jury commissioners to draw other names in lieu thereof. Appellant's motion further avers that the persons whose names were stricken from the list were duly qualified to serve as grand jurors. There was also attached to said motion to quash an affidavit by the three jury commissioners relative to the action of the district judge in striking said names from the list and sustaining the allegations in said motion. The appellant offered to introduce other evidence to substantiate the averments in said motion, but the court refused to permit him to do so, and after considering said motion, in connection with the affidavit, overruled same.

The record discloses that there was practically no dispute over the facts alleged in the motion to quash, but the court attached a statement purporting to be his qualification to said bill, showing the reasons for his actions complained of therein, to which qualification the appellant excepted. The trial court is without authority to qualify appellant's bill over his objection, and, when same is done, such qualification cannot be considered as a part of said bill by this court. Dowd v. State, 104 Tex. Cr. R. 480, 284 S. W. 592. See Vernon's C. C. P. 1925, article 667, note 37, for collation of authorities. However, a consideration of said qualification to the bill would not change the conclusion we have reached.

Article 337 of the C. C. P. states:

"The jury commissioners shall be kept free from the intrusion of any person during their session, and shall not separate without leave of the court until they complete their duties."

Article 335 of the C. C. P. requires that the jury commissioners take an oath to the effect that they will not make known "to any one the name of any juryman selected." Articles 338 and 339 deal with the number of grand jurors to be selected; article 340 requires said commissioners to seal the list of grand jurors selected and to write their names across the seal on the envelope, direct same to the district judge, and deliver it to him in open court; article 341 requires the judge to deliver the envelope containing the list of jurors to the clerk; article 342 requires the district judge to administer an oath to the district clerk to the effect that he will not open said list, nor permit...

To continue reading

Request your trial
7 cases
  • Ex parte Edone
    • United States
    • Texas Court of Criminal Appeals
    • October 7, 1987
    ...element in preserving the grand jury system as a bulwark against executive, legislative or judicial tyranny. See, Davis v. State, 105 Tex.Cr.R. 359, 288 S.W. 456 (1926); Adame v. State, 162 Tex.Cr.R. 178, 283 S.W.2d 223 (1955); accord: Tobin v. Broadfoot, One result of this view of the gran......
  • Hunter v. State
    • United States
    • Texas Court of Criminal Appeals
    • October 12, 1927
    ...presented by a legal grand jury. See Woolen v. State, 68 Tex. Cr. R. 189, 150 S. W. 1165; Powell v. State, supra; Davis v. State, 105 Tex. Cr. R. 359, 288 S. W. 456. The principle that the restrictions found in the acts of the Legislature intended to preserve and protect individuals in thei......
  • Turner v. State, 23094.
    • United States
    • Texas Court of Criminal Appeals
    • April 4, 1945
    ...is alleged to have taken place after such jury had been impaneled. See Powell v. State, 99 Tex.Cr. R. 276, 269 S.W. 443; Davis v. State, 105 Tex.Cr.R. 359, 288 S.W. 456. The contention herein is that the judge impaneling the grand jury interfered with the free exercise of discretion upon th......
  • Tobin v. Broadfoot, 27002
    • United States
    • Texas Court of Criminal Appeals
    • May 26, 1954
    ...of authorizing a judge to dismiss grand and petit juries without a public hearing on the question of their fitness. In Davis v. State, 105 Tex.Cr.R. 359, 288 S.W. 456, this Court held that a district judge was clearly in error when he required the jury commissioners to show him the names of......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT