Kincaid v. State

• Decision Date: 17 February 1926
• Docket Number: (No. 9842.)
• Citation: 281 S.W. 855
• Parties: KINCAID v. STATE.
• Court: Texas Court of Criminal Appeals

281 S.W. 855

KINCAID v. STATE.

(No. 9842.)

Court of Criminal Appeals of Texas.

February 17, 1926.

Rehearing Denied March 24, 1926.

Commissioners' Decision.

Appeal from District Court, Jones County; Bruce W. Bryant, Judge.

J. A. Kincaid was convicted of the unlawful sale of intoxicating liquor, and he appeals. Affirmed.

C. P. Chastain, of Hamlin, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

BERRY, J.

The offense is unlawful sale of intoxicating liquor, and the punishment is one year in the penitentiary.

The record discloses that the appellant entered his plea of guilty to the offense charged and filed an application for a suspended sentence. The only question requiring serious consideration is his complaint at the court's action in refusing to permit him to ask the veniremen on their voir dire the following questions:

"In deserving cases where the defendant in the case comes within the purview of the suspended sentence law and shows himself deserving, would you be willing in such cases to grant a suspended sentence?"

This question was asked each of the jurors, and the state's objection to the same was sustained. In qualifying the bill of exceptions, however, the trial court states that the defendant was permitted to ask each juror on his voir dire as to his prejudice, if any, to the suspended sentence law, or its application, and each juror was permitted to answer the same. No juror sat in the case who did not say that in some cases he would give a suspended sentence.

Our statute defines a peremptory challenge as one made to a juror without assigning any reason therefor. Article 614, 1925, C. C. P., O. C. art. 690. As a predicate for a challenge for cause the accused may by proper interrogation, elicit facts which will enable him to intelligently exercise his right of challenge. Belcher v. State, 258 S. W. 815, 96 Tex. Cr. R. 562. "This must, of course, within reasonable limits, be determined under the facts of the particular case by the trial judge. His discretion in the matter, however, has limitations, and when abused, will be corrected upon appeal." Reich v. State, 251 S. W. 1073, 94 Tex. Cr. R. 449. As a general rule great latitude should be allowed a party interrogating a venire in order to enable his counsel to determine the desirability of exercising on the members thereof his right of peremptory challenge, and this court does not look with favor on any...