Johnson v. State, (No. 6412.)

• Decision Date: 02 November 1921
• Docket Number: (No. 6412.)
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

234 S.W. 891

JOHNSON v. STATE.

(No. 6412.)

Court of Criminal Appeals of Texas.

November 2, 1921.

Rehearing Denied December 7, 1921.

Appeal from District Court, Lamar County; A. P. Dohoney, Judge.

Fleming Johnson was convicted of murder and appeals. Affirmed.

R. B. Johnson, of Paris, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Lamar county of murder, and his punishment fixed at confinement in the penitentiary for life.

By his bills of exceptions Nos. 1 and 2 appellant, who is a negro man, complains of racial discrimination in the selection of a petit jury to try him for the murder of a white man, it being alleged that there were no negroes on said petit jury, and that they were excluded therefrom because of their color and race, it being stated in the body of said bill of exceptions No. 2 that appellant offered to prove such fact upon presentation of his motion to quash the venire, but that the trial court refused to hear such evidence. It is made to appear from the court's qualification of bill of exceptions No. 1, which was accepted by appellant and filed with said explanation attached, without objection, that a regular list of jurors for the term had been drawn by the jury commissioners appointed at the preceding term of court, from which the district clerk in open court drew the special venire for use in the instant case. No plea of discrimination against the colored race on the part of the jury commissioners was made in said motion, same setting up that such discrimination was indulged in by the district clerk in drawing the particular venire list, and by the sheriff in summoning same. On its face this last allegation would appear confusing. If the district clerk purposely refused to draw any negroes on the venire list, this would seem to remove from the sheriff discretion or power to discriminate in the summoning, inasmuch as he could only summon those whose names appeared on said list. If the clerk drew the names of negro jurors and furnished to the sheriff a venire list with such names thereon, and it was shown that the sheriff refused to summon them, then a charge of discrimination might be laid at the sheriff's door, but same would not obtain against the clerk. However, upon hearing of said motion, as appears from the court's explanation attached to bill of exceptions No. 2, which is also accepted and filed by appellant without objection, that when said motion was presented by appellant his counsel argued same, and the trial court asked him if he had anything further to offer in support thereof, and upon the statement of said counsel that he had nothing further the court overruled said motion. This was correct. If appellant had evidence to...