Herring v. State, 28979
| Decision Date | 29 May 1957 |
| Docket Number | No. 28979,28979 |
| Citation | 302 S.W.2d 428,165 Tex.Crim. 4 |
| Parties | W. R. HERRING, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Boling & Griffith, Lubbock, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
Our prior opinion affirming the conviction herein for the sale of beer in a dry area is withdrawn and the following substituted therefor.
Ten members of the seventeen member jury panel, upon their voir dire examination, were challenged for cause after they stated that they had an opinion as to the guilt of the defendant which would influence their verdict.
The trial court overruled the challenge for cause and appellant, after exhausting his peremptory challenges, was forced to accept these jurors and three of them served as jurors and returned the verdict finding appellant guilty and assessing his punishment at 30 days in jail and a fine of $100.
In holding these jurors qualified the trial court relied upon their statements that their opinions had been formed from reading newspaper reports and discussions on the streets by various people, and the assurance given the court by these jurors that they did not know whether what they read in the newspapers 'was so or not, I don't go by that' and they could give him just as fair a trial as though they had never heard a thing or seen him or 'anything about it.'
Art. 616, Vernon's Ann.C.C.P. sets out reasons for challenging a juror for cause, or 'an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury.'
One of the grounds set out in said Article 616 is 'That from hearsay or otherwise there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as will influence him in his action in finding a verdict.'
Art. 616(13), V.A.C.C.P. further sets out the manner by which it shall be ascertained whether this ground of challenge exists, and provides
Other provisions of Sec. 13 of art. 616, V.A.C.C.P. relate to the further examination of the juror 'if he answers in the negative.'
The jurors challenged by appellant when asked about their opinions did not answer in the negative, but each said that he had formed the opinion that defendant was guilty, and that such opinion would influence his decision in the case.
Under the plain provision of the statute mentioned, the challenges to these jurors should have been sustained and the jurors excused upon such answers. See Branch's Ann.P.C., 2d Ed., Sec. 580, and cases cited.
The fact that a juror has an opinion or conclusion as to the guilt or innocence of the accused does not alone disqualify him. Garza...
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