Holland v. State

• Citation: 20 S.W. 750
• Decision Date: 10 December 1892
• Parties: HOLLAND v. STATE.

20 S.W. 750

HOLLAND v. STATE.

Court of Criminal Appeals of Texas.

December 10, 1892.

Appeal from district court, Brazoria county; W. H. BURKHART, Judge.

Frank Holland was convicted of murder in the first degree, and from a judgment assessing his punishment at death he appeals. Affirmed.

R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

In the lower court appellant was convicted of murder in the first degree for killing one Steve Cravey, and his punishment assessed at death. There is no statement of facts in the record. There are, however, three bills of exception. The first relates to the examination of the juror G. B. O'Brien as to his qualifications on his voir dire. Defendant peremptorily challenged the juror, and the bill of exceptions states that before the jury was completed his peremptory challenges were exhausted. The learned trial judge, in his explanation attached to the bill, says that it is allowed with this addition. That "defendant exhausted just twenty challenges, and when the last juror, G. B. Harris, was impaneled, no objection was raised to him. He was next called after the defendant had exhausted his challenges. The defendant objected to no one after he had exhausted his challenges." He further states that when the juror Harris was turned over to defendant for examination his attorneys stated they had exhausted all their challenges, but the court said they could examine as to his qualifications, and nothing more was said about this juror Harris. The rule is well settled that, unless objection is shown to one or more of the jurors who tried the case, the ruling of the trial court upon the competency or incompetency of such jurors will not be inquired into in this court, even though the defendant had exhausted his peremptory challenges. Holt v. State, 9 Tex. App. 571; Loggins v. State, 12 Tex. App. 65; Willson, Crim. St. § 2293: Black well v. State, 29 Tex. App. 195, 15 S. W. Rep. 597.

Appellant's second bill of exceptions relates to the action of the court overruling his application for a continuance. As before observed, there is no statement of facts found in the record. In reviewing the refusal of a continuance on account of the absence of a witness, the appellate court must consider the evidence adduced on the trial, for the purpose of determining whether the absent testimony was probably true, as well as whether it was material if true; and hence the necessity of a statement of facts in the record. Willson, ...