Drake v. State

• Decision Date: 17 March 1888
• Citation: 7 S.W. 868
• Parties: DRAKE v. STATE.
• Court: Texas Court of Appeals

7 S.W. 868

DRAKE v. STATE.

Court of Appeals of Texas.

March 17, 1888.

Appeal from district court, McLennan county; EUGENE WILLIAMS, Judge.

Indictment and conviction of J. M. Drake for the murder of L. S. Guinn. On the trial four witnesses testified that another witness, who on cross-examination had denied that he knew, before the shooting, of defendant's intention to shoot Guinn, and had denied that he said, on the evening after the shooting, that he had such knowledge, had in fact made such an admission at the time indicated.

Clark, Dyer & Bolinger, for appellant. Asst. Atty. Gen. Davidson, for the State.

HURT, J.

This is a conviction for murder of the first degree, with the death penalty. Twelve men were impaneled as a grand jury. Eleven presented this bill of indictment. Appellant moved to quash, because a member had been excused by the court, had abandoned the state, and was a resident of the state of Missouri at the time this indictment was presented. The position assumed by counsel is that, unless there was a grand jury composed of twelve men when the bill was presented — less than twelve men were without authority to act — the constitutional body was dissolved; that, while it is true nine members may constitute a quorum, etc., still, there must be a body composed of twelve men in order to the existence of a legal grand jury. Grand juries shall be composed of twelve men, but nine members of a grand jury shall be a quorum to transact business and present bills. Const. § 13, art. 5. The supreme court shall consist of a chief justice and two associate justices, any two of whom shall constitute a quorum, and the concurrence of two judges shall be necessary to the decision of a case. Two judges of the supreme court constitute a quorum, though the constitution requires that the supreme court shall consist of a chief justice and two associates. Now, let us suppose that a member of the supreme court should die. Evidently, there would still be a constitutional court remaining, with full and complete powers to decide causes, — powers and authority equal to that possessed by a full bench. Applying the analogy, suppose three members of the grand jury should die, would not the remaining nine have all the powers and functions of a body composed of twelve men? Would it be necessary, to render their acts legal, for the body, composed originally of twelve men, to remain unbroken? If so, why not apply this rule to the organization of the supreme court, and hold that not less than three members would constitute a court? We may be answered that the constitution expressly provides that two members of the court shall be a quorum. To this we reply that the constitution expressly declares that nine members of the grand jury shall be a quorum to transact business and present bills, — a quorum to do precisely that which is objected to by appellant, i. e., "present bills." If, therefore, the death of a member of the supreme court will not affect its existence as a court, for the same reason the death of a member of a grand jury will not dissolve the grand jury, and render the acts of a quorum nugatory. If, however, the legislature should, in violation of the constitution, place upon the supreme bench more than three members, the courts of the country would not hesitate to declare such an organization absolutely void, — no court at all. So with the organization of a grand jury. By statute it is made the duty of the judge to impanel twelve men. Code Crim. Proc.arts. 368, 371, 376, 384, 391. Twelve constituting the panel, twelve should be impaneled. But from this it does not follow that there must be twelve jurors subject for duty, or within the jurisdiction of the court all the while. The object of the provision of the constitution making nine a quorum was evidently intended to meet any and all contingencies of like character as that presented in this case, or the death of a member. There was no error in refusing to quash the indictment.

The indictment alleged the name of the deceased to be "L. S. Guinn." On the trial his name was proved to be not "L. S.," but "S. L. Guinn." It is claimed that the variance is fatal. Inasmuch as the case must be necessarily reversed on other points, and a new indictment can easily and readily be presented by which the variance can be obviated and corrected, we do not care to discuss this branch of the case, but suggest that the prosecution procure the finding of a new indictment. There is, certainly, as the case stands, much doubt as to the variance having been obviated by the evidence on that point.

By bill of exceptions, it appears that Justice of the Peace Sleeper, learning that Prof. Guinn had been shot, went to the house of J. W. Brightwell, in Waco, on August 27, 1887, and found Prof. Guinn there, and wounded with a pistol-shot wound; that he heard, after he got to the place where Guinn was shot, and at which place he arrived about an hour after the shooting, the certain declarations made by Guinn. At the time of making such declarations, the deceased, Guinn, was conscious of approaching death, and the declarations were made voluntarily, and were not made in response to questions put to deceased, and such declarations were first orally made by deceased, and then immediately written down by witness, and read over to him, (deceased,) when he subscribed the same. "I do not know where the written statement of deceased, as taken down by me, is, or what became of it. I gave it to some one, but don't remember to whom I gave it. I gave it to some one a day or two before Guinn died, and have not seen it since. In the oral statement made in my presence by deceased, as aforesaid, deceased said that he was occupying a house on Sixth street and Cleveland street, in Waco, belonging to the defendant, J M. Drake, and which he (deceased) had been renting from Drake; that he and Drake, a few days prior to that time, had had a difficulty growing out of the rent of said house; that he (deceased) was preparing to leave the house, and, on the previous day, had moved most of his household goods therefrom, and returned on that morning to finish moving, and found Drake and...