Forester v. State

• Decision Date: 26 November 1913
• Citation: 163 S.W. 87
• Parties: FORESTER v. STATE.
• Court: Texas Court of Criminal Appeals

163 S.W. 87

FORESTER v. STATE.

Court of Criminal Appeals of Texas.

November 26, 1913.

Rehearing Denied February 11, 1914.

Appeal from District Court, Grayson County; W. J. Mathis, Special Judge.

Pearl Forester was convicted of assault with intent to murder, and she appeals. Affirmed.

Sturgeon & Beauchamp, of Paris, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of an assault with intent to murder, and her punishment fixed at the lowest prescribed by law—two years in the penitentiary.

The evidence is amply sufficient to sustain the verdict and judgment.

The assault was charged to have been committed on November 2, 1912, on Lee Simmons, who was a few days later elected sheriff of said county, and duly qualified and was such sheriff at the time of this trial. The case was tried and the verdict rendered on May 7, 1913. The court adjourned for the term ten days later. When the case was called for trial, and after the state had announced ready, but before appellant announced she made a motion to have the court appoint some citizens of the county, who had no special interest in the case, or the result thereof, to perform any and all the duties incumbent upon said sheriff and his deputies. The court overruled this motion and qualified appellant's bill of exception to his action, by stating that she did not ask that the constable perform said duties, and that no injury was shown. Before the selection of the jury and after the court ordered talesmen summoned, she made another motion setting up that the jury commissioners had drawn 60 names from the jury wheel to be summoned as jurors for that week of the court; that the sheriff did not summon 15 of them, and only 22 of them appeared as jurors, and she therefore prayed the court to require the others so drawn from the jury wheel to be summoned. The court qualified her bill to the overruling of this motion by stating that all regular jurors were accounted for prior to the filing of said motion. This bill of exception thus qualified was filed on June 13th about four weeks after the court had adjourned for the term. At that time appellant took another bill to the court's said qualification, claiming that nothing in the record showed they were accounted for and because in conflict with the court's testimony on the subject, which was heard on her motion for new trial. This bill was not filed until June 13th. The court qualified this, and appellant accepted and filed it, stating the same thing, that at the time of appellant's complaint all regular jurors had been accounted for. If we could consider this latter bill and the testimony purported to be heard, it would show, in effect, that the presiding judge, who tried this case, testified on said hearing of the motion for new trial that quite a number of the jurors who were drawn from the jury wheel were excused by him for legal cause, and some on account of legal exemption, and that 22 of the regular jury were thus left, who appeared as jurors at the time. Appellant made another motion challenging the array of talesmen because they were selected and summoned by the sheriff and his deputies with a view to cause her to be convicted and they were prejudiced against her and friends and supporters of the sheriff. The court, in approving appellant's bill to his overruling this motion, qualified it by stating that no proof was offered in support of said motion. We have stated all the above matters pertaining to the summoning of the jurors, and to the organization and selection thereof so as to discuss them together.

In the first place, the sheriff was not a party to the suit, although he was the person alleged to have been assaulted. The state of Texas was the party to the suit against appellant. The duties of a sheriff, prescribed by law, are such as must necessarily make him more or less active for the state in every felony case prosecuted in the courts, and in a great many of such cases he is an important witness and used as such. Of course, the fact that he is an important witness in any case does not disqualify him from acting in his official capacity in serving any and all process therein. There is nothing in this record anywhere which shows that said sheriff, Simmons, summoned those jurors, whether those drawn by the jury commissioners or the talesmen. Article 54, C. C. P., is that, whenever a duty is imposed by this Code upon the sheriff, the same duty may lawfully be performed by his deputy. And the record nowhere shows or tends to show that he or any of his deputies in any way talked to any of the jurors who were summoned, or in any other way tried to influence them against appellant. There is with the record what is agreed to by all parties and approved by the court as the complete testimony by question and answer on their voir dire of every juryman, some 37, summoned in this cause. This was not filed until June 20, 1913, about five weeks after the court adjourned. If we could consider this, it would show that said sheriff personally did not summon a single one of the jurors, but that they were summoned by two of his deputies, and the testimony of each of these jurors would show that neither the sheriff nor any of his deputies in any way whatever attempted to influence them against appellant, or said anything to them in any way about her, or in connection with this case, other than merely summoning them; and that said jurors were wholly disinterested, entirely without prejudice, and in every way fair and impartial.

Our statute expressly provides that no challenge to the array of jurors shall be allowed when the jurors have been selected by jury commissioners. C. C. P. art. 681. Article 680 provides that the defendant may challenge the array for the following causes only: That the officer summoning the jury has acted corruptly, and has willfully summoned persons upon the jury, known to be prejudiced against defendant with a view to cause him to be convicted. While appellant's motion alleged this ground for challenge to the array of talesmen, she swore to it only "to the best of her belief and information." As stated above, the court, in qualifying the bill, said she offered no proof in support of said motion, and, as stated above, if we could look to the whole record, it would show that her allegation was affirmatively untrue and without foundation.

It will be borne in mind that this was an ordinary felony case—not a case where a special venire was authorized or permitted by law. It is only in special venire cases that the law authorizes or permits an attachment or other process to be issued for special veniremen who do not appear. C. C. P. art. 673. And that even in such cases the cause shall not be unreasonably delayed on account of the absence of such veniremen. Article 696, C. C. P. This being an ordinary felony case, the statute expressly directs how the jury shall be formed in chap. 4, tit. 8, art. 702 et seq., and there is nothing in the record to show that this statute was not strictly complied with. So that in our opinion no error is shown by the court in overruling appellant's said motions.

There is testimony in the record to the effect that, on the evening of the night said Simmons was shot, appellant had a conversation with the constable at Sherman in which she asked him if "we went out of office when the sheriff did"; he told her they would; and she said she...