Duncan v. State

• Decision Date: 08 March 1916
• Docket Number: (No. 3972.)
• Citation: 184 S.W. 195
• Parties: DUNCAN v. STATE.
• Court: Texas Court of Criminal Appeals

184 S.W. 195

DUNCAN v. STATE.

(No. 3972.)

Court of Criminal Appeals of Texas.

March 8, 1916.

Appeal from District Court, Parker County; F. O. McKinsey, Judge.

John Duncan was convicted of cattle theft, and he appeals. Reversed and remanded.

Hood & Shadle, of Weatherford, and Peden & Lipscomb, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

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

There are several bills of exception in the record, but after a careful review of them we are of the opinion none of them present error, unless it is the bill contending that William Golden was not a competent juror. It appears that on the voir dire examination of the jury this juror answered that he heard there was such a case, but he had formed no opinion as to the guilt or innocence of the defendant. Upon the hearing of the motion for a new trial, under allegations that this juror had formed and expressed an opinion prior to the time he was selected on the jury, evidence was heard and is embraced in the eighth bill of exceptions. The juror was called as a witness, and his testimony would tend to show that he had formed and expressed no opinion, and what he said to Will Hughes about sending appellant to the penitentiary was said in a joking way, and the way he explains it no serious consideration should be paid to it. However, the defendant introduced M. A. Kyle, who testified that shortly after Mr. Chew had lost his cattle, he and young Robert Chew were passing Golden's house and had a conversation with Golden, and in that conversation Chew told Golden they had found two of the cattle, and his father was going to West Texas after the other two, and appellant had been arrested, charged with the theft of the cattle. That the juror then said two of his cattle had been taken out of his pasture, and "it might have been Duncan (appellant) trying to get my cows," and remarked, "Duncan is the man who stole your pa's cows, and we don't want that kind of a man around here." Mr. Hughes testifies that after this, and a week before the trial, he was working with Mr. Golden at a sorghum mill and the juror told him he was on the jury for the next week, and they got to talking about the Duncan Case, and "he said he would not have to sit on Mr. Duncan's trial because he had already formed an opinion." The juror was again called to the stand and admitted he had a conversation with Kyle and young Robert Chew, and said he did not recollect what was said, but he had no recollection of saying that "Duncan is the man that got your pa's cattle." Young Chew was not called as a witness by either the state or the defendant.

If Kyle and Hughes' testimony is worthy of credit, certainly the juror was not a competent juror. We have appellant's testimony denying a portion of their testimony, admitting other portions, and not remembering as to the remainder. The trial court overruled the motion on this ground, and we are loth to disturb his finding, as this is a matter largely addressed to his discretion. However, under the laws of this state, a man is entitled to a trial by a fair and impartial jury, and where the question of whether h...