Hemphill v. State

• Decision Date: 21 October 1914
• Docket Number: (No. 3248.)
• Citation: 170 S.W. 154
• Parties: HEMPHILL v. STATE.
• Court: Texas Court of Criminal Appeals

170 S.W. 154

HEMPHILL v. STATE.

(No. 3248.)

Court of Criminal Appeals of Texas.

October 21, 1914.

Appeal from District Court, Guadalupe County; M. Kennon, Judge.

Will Hemphill was convicted of murder, and he appeals. Affirmed.

See, also, 165 S. W. 462.

C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

This is the second appeal in this case, the death penalty being again assessed by the jury on this trial.

Appellant moved to quash the indictment, in his plea alleging that he is a negro, and that men of that race were discriminated against in the selection of the grand jury. The court heard evidence on this plea, and there was no proof offered tending to show that appellant is of that race, but if such proof had been offered, the evidence would wholly fail to sustain the plea. The evidence would show that there are some 3,000 white voters in the county, and only about 500 votes of the negro race, and of this latter class not over ten per cent. are qualified to serve as jurors, making only about 50 negroes in the county qualified to serve as jurors, while there are some 3,000 of the white race. The evidence further shows that at least one negro was drawn on the jury panel for the term of court at which appellant was indicted, and Mr. P. L. Herron, the only member of the jury commissioners placed on the witness stand, testified:

"We did not intentionally discriminate against the colored race in selecting the grand jurors and petit jurors at that time. I have no recollection of any discrimination at all. The judge told us to take our time for it, and we did. He said that he had got tired of this quick jury business, to stay there until we got through. We did not intentionally fail or refuse to put a man on the grand jury simply on the ground that he was a negro, that I know anything about. The idea of the jury commissioners was to select the best and most responsible men from all over the county."

Again, appellant was under arrest and in jail when the grand jury which indicted him was impaneled, and he made no request to be brought into court that he might challenge the array of grand jury men nor any member thereof. Neither did he on his first trial make any motion to quash the indictment on this or any other ground at this term of court; it being the third term of the district court of that county after this indictment had been returned before any such motion was filed. Under such circumstances the motion would come too late, as a motion to quash the indictment on this ground must be seasonably made — when first presented an opportunity to do so. Article 409 of the Code of Criminal Procedure reads:

"Any person, before the grand jury has been impaneled, may challenge the array of jurors or any person presented as a grand juror; and, in no other way, shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall, upon his request, be brought into court to make such challenge."

It is true, the United States Supreme Court has held that where one has had no opportunity to challenge the array before the impaneling of the jury, he may do so in a plea of abatement at the first opportunity, but in this case appellant was not only in jail when the grand jury that indicted him was impaneled, and made no request to be brought into court to challenge the men selected to serve as grand jurors, but when arraigned for trial he made no such plea and did not...