Howard v. State
Decision Date | 21 February 1917 |
Docket Number | (No. 4332.) |
Citation | 192 S.W. 770 |
Parties | HOWARD v. STATE. |
Court | Texas Court of Criminal Appeals |
Appeal from District Court, Henderson County; Jno. S. Prince, Judge.
J. L. Howard was convicted of manslaughter, and appeals. Reversed and remanded.
W. R. Bishop, of Athens, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
Appellant was convicted of murder, his punishment being assessed at five years' confinement in the penitentiary. The questions with reference to the continuance and argument of prosecuting officer will not be discussed further than to say that upon another trial the attendance of the witnesses may be secured, and in regard to the argument, that will not occur again. We would feel inclined to reverse the case for these reasons, but under the view taken on the other question, those are not further mentioned. As the facts attending the homicide had nothing to do with the swearing of the jury, the evidence will not be recited nor discussed. They have no bearing on the question of swearing the jury.
The main question here discussed is, that the jury was not sworn specifically to try the case. This is shown by the court in his qualification to the bill of exceptions, and by the jurymen who tried the case and is conceded. It seems the jurors were sworn the first day of the week as prescribed by Civil Statutes, art. 5213, but were not sworn when impaneled to try this particular case. The court in his qualification to the bill of exceptions states, in substance, that the jury was not otherwise sworn, and his attention was privately called to this fact by one of the jurors. The court informed this juror it was not necessary to swear them as a body, as all the jurors had been sworn at the beginning of the week, and such swearing was sufficient. We do not understand the trial court to be correct in his statement of the law. Article 714 of the Revised Code of Criminal Procedure thus reads:
Article 5213 of the Civil Statutes does not meet the requirements of article 714, C. C. P. This statute (article 714 C. C. P.) has been frequently before the court, and invariably it has been held that the jury must be sworn in the particular case as prescribed by the statute. Commencing with Arthur v. State, 3 Tex. 403, followed by Bawcom v. State, 41 Tex. 189, it was held that the statutory oath must be administered; that even a different oath than that prescribed would not be sufficient. Judge Moore, writing the opinion for the Supreme Court in Bawcom Case, said:
In the same volume (41 Tex. at page 501), in the Edmondson Case, Judge Gould, writing for the Supreme Court, said:
In Smith v. State, 1 Tex. App. at page 414, it is said:
In Leer v. State, 2 Tex. App. 495, at page 496, Presiding Judge Ector said:
Further quotation might be made from this case, but it is in line with cases already cited.
In Rippey v. State, 29 Tex. App. at page 43, 14 S. W. at page 449, Presiding Judge White of the Court of Appeals said:
This rule was followed also in Heskew v. State, 17 Tex. App. 161, and in Slaughter v. State, 100 Ga. 327, 28 S. E. 159.
Again, a case directly in point was delivered by Judge Simkins in Stephens v. State, 33 Tex. Cr. R. 101, 25 S. W. 286. The language there is as follows:
The oath testing them on each Monday is not sufficient. The oath administered on each Monday is not sufficient and has never been.
It would be more difficult to reconcile the action of the trial court with the prescribed statutory regulation and requirements and decisions quoted, and sustain this conviction because of a presumed waiver. The qualification of the judge does not show a waiver by defendant, nor does the court say he waived the necessary oath. He was not even requested so to do, nor was it even called to his attention by the court. We are cited, however, to the case of Caldwell v. State, 12 Tex. App. 315. That was a death penalty case. Judge Hurt delivered the opinion. That opinion shows, in substance, that the oath was not administered to each individual juror as selected. The statute provides this ought to be done, but that opinion discloses, and it is the basis of the opinion, that when the jurors had all been selected, the oath was administered to them as a body. Judge Hurt held that this was such an irregularity as would not require a reversal, but places it upon the ground that the jury was sworn to try that particular case. That jury was not an unsworn body of 12 men as in the present case. Conceding the correctness of Judge Hurt's opinion in the Caldwell Case, it would not be analogous to this case, nor have any bearing upon it, because in that case the jury were sworn to try the accused in that case. The verdict was a verdict of a sworn jury....
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Alston v. State
...v. Mississippi, 122 Miss. 19, 84 So. 161, 163 (1920); Missouri v. Mitchell, 199 Mo. 105, 97 S.W. 561, 562 (1906); Howard v. Texas, 80 Tex. Crim. 588, 192 S.W. 770, 773 (1917); West Virginia v. Moore, 57 W.Va. 146, 49 S.E. 1015, 1016 (1905). These cases have focused largely on the important ......
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People v. Cain, Docket No. 149259.
...Pa. 496, 497, 143 A.2d 56 (1958) (swearing of the jury is “fundamental in nature, and implicit in trial by jury”); Howard v. State, 80 Tex.Crim. 588, 592, 192 S.W. 770 (1917) (“[The defendant tried by an unsworn jury] was deprived of a constitutional as well as a statutory right.”); Slaught......
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State v. Vogh
...case; it was not enough that the entire jury pool had been sworn before the jury was selected. See, e.g., Howard v. State, 80 Tex.Crim. 588, 592, 192 S.W. 770 (1917). Much of that formalism has since given way to a more functional approach. For example, courts now appear uniformly to hold t......
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State v. Hollman
...general, and the appellant himself, does not state that the jury was sworn. As stated in the annotation following Howard v. State, 1917, 80 Tex.Cr.R. 588, 192 S.W. 770, in L.R.A.1917D, at page 400, it is very generally held that the 'record' of a criminal trial must affirmatively show that ......