Fogle v. State

• Decision Date: 01 December 1937
• Docket Number: No. 19213.,19213.
• Parties: FOGLE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 246

111 S.W.2d 246

FOGLE v. STATE.

No. 19213.

Court of Criminal Appeals of Texas.

December 1, 1937.

Appeal from County Court, Randall County; Burney Slack, Judge.

Bill Fogle was convicted for the illegal transportation of liquor into a dry county, and he appeals.

Affirmed.

Geo. S. Berry, of Lubbock, for appellant.

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

GRAVES, Judge.

This case comes under a prosecution for a violation of the liquor laws in what is commonly termed a dry area, that is in Randall county, which county voted itself dry in the year 1900, and was thus dry in the year 1919, at the date when the state of Texas adopted the amendment to the Constitution prohibiting the sale, manufacture, and transportation of intoxicating liquors throughout the state.

The appellant, upon a trial of his case for the illegal transportation of whisky into said county, was found guilty, and awarded a penalty of a fine of $300, hence this appeal.

Appellant first complains in his bill of exceptions No. 1 of the action of the court in failing to quash the jury panel, before which he was presented, upon his motion to do so, and brings the matter before us rather fully in his bill. It appears that appellant had been held by means of a complaint in cause No. 1566 in the county court of Randall county, and had seasonably filed his request to have the county judge call jury commissioners for the purpose of drawing a jury for the week in which cause No. 1566 was set. In the meantime, however, a further case had been filed against appellant, it being cause No. 1567 in said court, and upon a call of No. 1566, the same was dismissed, and appellant put to trial in cause No. 1567.

It appears from the agreement filed by all parties to this trial that there was actually present at the calling of the case a jury which had been brought into court in the following manner. We quote from the transcript herein as follows "Agreement.

"It is agreed between the counsel for the defendant and the counsel for the State that the only showing that a jury commission has been appointed is a list of names on a sheet of paper filed by W. C. Black, Wilson Campbell and C. R. Burrow, which paper does not bear the file mark of the County Clerk of said county, and which does not show that said Jury Commission was appointed by any order of the Court.

"Then we offer a sheet of paper showing to be a certified copy of a jury list dated on the 21st day of April, 1937, and filed by L. C. Phillips, Deputy County Clerk of Randall County, Texas, and the sheriff's return on the 21st day of April, 1937, showing that he summoned the men named therein and filed the same on April 24, 1937, as evidence.

"It is further agreed that the County Judge of Randall County, Texas, on or about the 21st day of February, 1937, directed the Sheriff of Randall County, Texas, to summon W. C. Black, Wilson Campbell and C. R. Burrow to act as jury commissioners for said County Court, and the said sheriff in compliance with said verbal directions did summon said men for the purpose of acting as such jury commission, and said 3 men did appear at the office of the County Judge of Randall County, Texas, and were furnished with a list of Randall County voters for the year 1937, as is shown by the tax rolls of 1936, and that the list as furnished to the sheriff of said county on April 21st, 1937, to serve as jurors for the 4th week of the April term of said Court was taken from a certain envelope.

"It is further agreed that when the 3 men appeared before the County Judge of Randall County, Texas, he swore them and formally instructed them to select lists of jurors to serve the County Court of Randall County, Texas, for March, April, May and June Terms of County Court of Randall County, Texas, but that no written order was ever made and filed in the County Clerk's office appointing said 3 men to act as jury commissioners for the purpose of selecting said jurors as is provided by article 2109 et seq. Revised Statutes of 1925."

It will be seen from the above quotation that the county judge followed the law prescribed for the summoning of jurors for this term of court, and that the main complaint relative thereto seems to be the failure of the county clerk to make the proper entry on the minutes of said court showing the acts of the judge relative to the appointment of such commissioners.

It would appear herein that a jury was actually present at this trial, which jury had been drawn by three men verbally ordered by the court to draw such jury, and they had been summoned to thus appear by the sheriff, but that the act of the county judge in thus appointing such jury commissioners had not been passed into the minutes of said court. It would seem that the judge had made an honest effort to have a jury properly selected as required by law, but there had been a failure to enter his order appointing the commissioners on the minutes.

This matter is not...