Ervin v. State

• Decision Date: 10 June 1931
• Docket Number: No. 14197.,14197.
• Citation: 44 S.W.2d 380
• Parties: ERVIN v. STATE.
• Court: Texas Court of Criminal Appeals

44 S.W.2d 380

ERVIN v. STATE.

No. 14197.

Court of Criminal Appeals of Texas.

June 10, 1931.

State's Rehearing Denied December 16, 1931.

Commissioners' Decision.

Appeal from District Court, Taylor County; M. S. Long, Judge.

Claude Ervin was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.

Reversed and remanded.

Oliver Cunningham and J. F. Cunningham, both of Abilene, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is possessing intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for five years.

Before announcing ready for trial, appellant filed his motion to quash the jury panel, which was overruled. It appears that the members of the panel had been selected by jury commissioners at a regular term of the court convening in July, 1930. The trial was had at the next succeeding term, on September 19, 1930, before a jury drawn from this panel. The motion to quash directed the trial court's attention to the fact that the city of Abilene in the county of the prosecution had a population of 23,129 according to a preliminary announcement of the census made on May 6, 1930, by the supervisor of the census of the district embracing the city of Abilene. Appellant sought a jury drawn in accordance with the provisions of article 2094, Revised Statutes of 1925, as amended by the Acts of the Forty-First Legislature, 1929, c. 43, § 1 (Vernon's Ann. Civ. St. art. 2094), which provides for the "jury wheel system" in counties having a population of at least 58,000 or having therein a city of at least 20,000 population, as shown by the preceding federal census.

There is no specific provision in the Act of Congress June 18, 1929 (13 USCA § 201 et seq.), with reference to the time of final announcement of the census; nor is there any provision as to the time the census shall become effective. Under the terms of the Act of Congress March 6, 1902, § 11 (13 USCA § 4), the Director of the Census is required "to have printed, published, and distributed from time to time, bulletins and reports of the preliminary and other results of the various investigations authorized by law." Substantially to the same effect is section 13, Act of Congress June 18, 1929 (13 USCA § 213), which imposes on the Director the duty to have printed preliminary and other census bulletins and final reports of the results of the several investigations. Section 205, 13 USCA, reads as follows: "Each supervisor shall perform such duties as may be imposed upon him by the Director of the Census in the enforcement of this chapter," etc.

In Holcomb et al. v. Spikes, 232 S. W. 891, 894, the Court of Civil Appeals at Amarillo, Tex., in holding that a preliminary announcement of the census by the Director was an official pronouncement of which the public and all officials may take notice, said: "It would seem by the act of 1902 duties were imposed upon the Director to publish and distribute bulletins and reports of the preliminary and other results of the various investigations authorized by law. This, in so far as we can ascertain, is the only method to inform the public and of giving it access to the information ascertained and compiled by the enumerators and supervisors. It would seem when bulletin is so published and distributed it then becomes an official pronouncement under the law, of which the public and all officials may take notice. * * * In this case the undisputed facts show the Census Bureau, under the signature of its Director, issued a bulletin showing before the election the population of Lubbock County to be 11,096. This seems to have been official. This information appears to have been given to leading papers of the state. Under the law this information could have been obtained in no other way than through the Director's official act, without violating the law and subjecting the parties to a charge of felony. We think the case of Nelson v. Edwards 55 Tex. 389, indicates, when the enumerators' list is filed, as required by the law, as it then existed, this made it such evidence as that public officials could and should act upon it. There was no other method provided or shown requiring a proclamation placing the census in effect."

In the case at bar, the preliminary announcement of the census contained a statement that the figures were preliminary and subject to correction. Touching the effect of this statement, we quote further from the opinion in Holcomb et al. v. Spikes, supra, as follows: "It is insisted that the Director of Census gave a certificate to the effect that the count for the census was subject to correction. If this certificate was authorized by the act, we do not believe it should be held that this evidenced that the census was not complete under the terms of the law when the Director had officially published and distributed bulletins that the population was over 10,000. It is not a fact that the official count was incomplete or was not correct. In fact, his subsequent certificate shows it was correct, and that his bulletin had been properly issued. The bulletin, we believe, officially announced the population as shown by the list forwarded by the enumerators of Lubbock county and supervisors of the district, and that as filed in the archives of the census office it was open to the public. The statute authorized, if there was an incomplete or erroneous enumeration, that it could be amended or taken anew. The bulletin does not indicate that it was incomplete or negligently done, but rather indicates it may be subject to correction. It does not carry the idea that it was incomplete, but that it was complete. We think, when the bulletin was given to the public, officials who were required to act with reference thereto may take official notice that the enumeration had been made and was then in the archives of that office, subject to the inspection of the public in which the population of Lubbock county had been determined. The fact that it may be corrected does not indicate that the census was not complete and then a public document under the law."

In the case of Herndon v. Excise Board of Garfield County et al., 147 Okl. 126, 295 P. 223, 224, the Supreme Court of Oklahoma had under consideration the question as to whether a preliminary announcement of the census of Enid, Okl., by the supervisor of the district embracing said city was binding upon officials who were required to act with reference to the population of said city. The case of Holcomb et al. v. Spikes, supra, was cited in support of the conclusion that the preliminary announcement was an official pronouncement of which the public and all officials took notice and by which officials who were required to act in reference to the population therein stated should be guided. After citing the statutes relating to the duties of the Director of the Census and his supervisors, the court said: "Thus it follows that the supervisor was clothed with authority to perform the duties imposed upon him by the Director of the Census, one of which duties was the preliminary announcement of the census involved in the case at bar. So then the preliminary announcement of May 3, 1930, was an official announcement of the census of Enid; moreover, the certificate of the Director of the Census, dated September 22, 1930, showing a population of 26,398, was official even if not final. It follows that the city of Enid fell into the classification contained in section 4691, C. O. S. 1921, providing for said court."

It appears that the statutes of Oklahoma provided for a city court in cities having a population of more than 25,000 and less than 55,000, as shown by the last federal census. The preliminary announcement of the population of Enid was held to automatically bring said city within the operation of the statute. See, also, State v. Braskamp, 87 Iowa, 588, 54 N. W. 532.

The opinion is expressed that the preliminary announcement of the census of the city of Abilene was an official pronouncement. This announcement was made prior to the time the jury commissioners selected the panel from which the jury was drawn. The announcement of the population in the preliminary report should have been the guide of officials whose duty it was to act with reference thereto. The effect of the preliminary announcement was to place the county of the prosecution under the provisions of article 2094, Revised Statutes 1925, as amended. Hence the motion to quash the jury panel should have...