Lee v. State

• Decision Date: 09 January 1957
• Docket Number: No. 28557,28557
• Parties: Gene LEE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 114

301 S.W.2d 114

164 Tex.Crim. 532

Gene LEE, Appellant, v. The STATE of Texas, Appellee.

No. 28557.

Court of Criminal Appeals of Texas.

Jan. 9, 1957.

[164 TEXCRIM 532]

Kenneth Johnson, Sam B. Spence, Wichita Falls, for appellant.

Jimmy Castledine, Dist. Atty., Wichita Falls, Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

Appellant was convicted for the murder of Dave Hill and was assessed a term of five years.

[164 TEXCRIM 533] Appellant's Bill of Exception No. 1 presents the following point of error: 'The Court erred in excusing the juror, Lindall C. Rose, after both sides had accepted the juror, Rose, over the objection of appellant, after the juror, Rose, had been sworn as a juror and had spent an entire night in the company of other jurors who had previously been accepted and sworn.'

On his voir dire examination the juror Rose was asked by the district attorney if there was any reason why he would not make a fair and impartial juror in the case, to which he answered 'I know Mr. Hill's sister, Virginia Cook. She works in the same department I do--out at the base.'

The 'Virginia Cook' referred to by the juror was in truth the sister of appellant, Gene Lee, which fact was known to the juror, and his reference to her as being the sister of the deceased, Dave Hill, was inadvertent and unintended.

Appellant, of course, was well aware of the fact that the juror's reference was to his sister, and accepted the juror without examining him. The district attorney, being led to believe that any leaning or bias the juror had by reason of his association with Virginia Cook would be favorable to the State, also accepted the juror.

After the juror was sworn he further stated that he had heard a lot about the case from different people and indicated that he had a prejudice which he said he had tried to disclose to counsel. In answer to the court's inquiry as to whether he could lay aside everything he had heard and all prejudice and try the case on the evidence alone, the juror replied: 'I will try'; 'I guess so,' and 'I have to work with this woman.'

No objection being offered by the State or by the defense, the juror Rose was permitted to join other jurors who had been selected and sworn.

On the following day, before any other venireman was examined, the district attorney made known to the court that he had learned that the woman referred to by the juror Rose was the sister of the defendant and not of the deceased, and at his request the court heard evidence establishing such fact.

The juror Rose was recalled and further examined. He testified that he did not intend to refer to his fellow employee as the sister of the deceased, but intended to say that she was the sister [164 TEXCRIM 534] of appellant, and that he could not be sure he could lay aside all prejudice.

The trial judge then excused the juror, though he had been accepted and sworn stating: 'I will excuse you. Both sides are entitled to jurors who do not have any prejudice, the State and the defendant alike.'

We recently had occasion to consider the authority of a trial judge to excuse a juror who had been accepted and sworn in a capital case. Houston v. State, Tex.Cr.App., 287 S.W.2d 643. We were there dealing with a juror excused by agreement because of an injury he received after he had been sworn.

The majority held that the excusing of the juror after he was sworn did not violate the constitutional guarantee of the right to trial by jury.

Here also a juror who had been accepted and sworn in a capital case was excused and another selected in his place.

But, unlike the Houston case, here appellant strenuously objected to the court's hearing evidence and permitting further examination of the juror, and excepted to Rose being stood aside.

The Houston case, we take it, is authority for the proposition that the excusing of a juror after he is sworn and the selection of another juror in his place does not constitute a jury composed of 13, provided the court has the power to stand aside the excused juror.

The case of Black v. State, 46 Tex.Cr.R. 590, 81 S.W. 302, cited in the Houston case, supports the State's contention that the trial court, in the exercise of his discretion, had the authority to execuse the juror Rose.

In the Black case, the juror Atkins and three others had been selected and sworn. Atkins sent word to the judge that he desired to make an explanation in reference to a mistake in answering the question as to his conscientious scruples in regard to the infliction of the death penalty.

His explanation was that he had misunderstood the question and that he did have such scruples and had discovered his mistake[164 TEXCRIM 535] while hearing other jurors examined. Over objection, State's counsel was permitted to further examine the juror Atkins and to challenge the juror, and the challenge was sustained.

This Court stated that the question to be decided was whether or not a challenge for cause can be interposed after the juror has been selected, and held that the action of the trial court in sustaining the challenge was correct. On rehearing this Court wrote at length on the question, citing with approval authorities from other jurisdictions as well as from this Court.

'Where a juror has misled counsel in regard to a cause for challenge and is accepted as a juror, it would not be violative of the law, upon discovering that the cause did exist, that the challenge may then be exercised, and the court would not be in error in sustaining that challenge at any time before the completion of the jury. However, we are not undertaking...