Leech v. State

• Decision Date: 21 June 1911
• Citation: 139 S.W. 1147
• Parties: LEECH v. STATE.
• Court: Texas Court of Criminal Appeals

139 S.W. 1147

LEECH v. STATE.

Court of Criminal Appeals of Texas.

June 21, 1911.

Rehearing Denied October 18, 1911.

Appeal from District Court, El Paso County; P. H. Clarke, Special Judge.

John Leech was convicted of murder in the first degree, and he appeals. Affirmed.

J. E. Wharton and P. E. Gardner, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

On June 17, 1910, the appellant was indicted by the grand jury of El Paso county for the murder of E. Kohlberg on that day by shooting him with a pistol. He was convicted of murder in the first degree, and a life penalty in the penitentiary was assessed against him.

The appellant, by his attorneys, has filed a brief in the case, and also orally argued the case when it was submitted. The material questions are presented by the appellant's brief, and, while we have considered all other grounds of the motion for new trial, we will only discuss those presented by the brief, as it is unnecessary to discuss any of the others.

The killing is shown to have occurred just before or about 5 o'clock in the evening of June 17, 1910. The district court was then in session with a properly organized and impaneled grand jury, and had been for some time. On June 17th by permission of the court the grand jury adjourned until June 24, 1910. Very soon after the killing on the same day by the order of the court the grand jury was reassembled at 8 o'clock that evening. It seems that only 10 of the 12 grand jurors could be reached, and were present when the case was investigated and considered by the grand jury, and the indictment was found. At the time the indictment was returned into open court on said date, by order of the court, the clerk polled the jury, when 10 of them answered present and reported to the court that they concurred in finding the bill, which was thereupon ordered to be received and filed by the clerk, and this was done. On June 24, 1910, the appellant filed a motion to set aside the indictment against him, for the reason that he was given no opportunity to challenge the array of the grand jury or the personnel thereof prior to the time the indictment was returned; that the grand jury was reconvened on the day of the killing and after the killing, without the knowledge of the defendant, and the indictment was returned against him while he was in jail without counsel and without the means or opportunity of securing the same, and defendant was given no opportunity to raise any objection to the qualification or the legality of the grand jury, and because the grand jury had on the morning of June 17, 1910, adjourned until the 24th of that month, that some of the members of the grand jury were not notified of such call, and had no opportunity to be present at the deliberations, and that the indictment was returned by only 10 grand jurors, and that the indictment was brought about at the instigation of a combination of influential persons, and was not the result of calm deliberation. This motion by the appellant to set aside the indictment was contested by the state as being wholly insufficient and presenting no reasons why the indictment should be set aside, and further showed that on May 2, 1910, the grand jury for that term of court had been duly and properly summoned, impaneled, and sworn as the grand jury for that term of the court; that the grand jury thereafter convened from time to time and date to date under a proper order of the court, and on June 17, 1910, met and held a legal meeting, and by permission of the court were permitted to adjourn until June 24th following; that on that date, June 17, 1910, the said court and the judge thereof made and entered an order in the minutes of the court reconvening the grand jury on that date at 8 o'clock p. m.; that 10 of the grand jurors were present at the investigation of the charge against the appellant, and that, after due deliberation and hearing of the testimony, the indictment was returned into open court when and where the grand jurors were polled, and it was shown that 10 were present and participated in said deliberations, and that as many as 9 concurred in the finding of the indictment. It is also expressly denied that the indictment was brought about at the instigation of a combination of influential persons, but that it was the result of calm deliberation. This contest by the state was supported by the undisputed affidavit of the foreman of the grand jury.

Article 397, C. C. P., provides: "Any person, before the grand jury has been impaneled, may challenge the array of jurors or any person presented as a grand juror, and in no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall, upon his request, be brought into court to make such challenge." Article 400, C. C. P., provides: "A challenge to the array shall be made in writing, and for these causes only: (1) That the persons summoned as grand jurors are not, in fact, the persons selected by the jury commissioners. (2) In case of grand jurors summoned by order of the court, that the officer who summoned them had acted corruptly in summoning any one or more of them." Article 401, C. C. P., provides: "A challenge to a particular grand juror may be made orally, and for the following causes only: (1) That he is not a qualified grand juror. (2) That he is the prosecutor upon an accusation against the person making the challenge. (3) That he is related by consanguinity or affinity to some person who has been held to bail, or who is in confinement upon a criminal accusation." Article 410, C. C. P., provides: "Nine members shall be a quorum for the purpose of discharging any duty or exercising any right properly belonging to the grand jury." Article 419, C. C. P., provides: "The grand jury shall meet and adjourn at times agreed upon by a majority of the body, but they shall not adjourn at any one time for more than three days unless by consent of the court; but with the consent of the court they may adjourn for a longer time, and shall as near as may be conform their adjournments to those of the court." Article 411, C. C. P., provides: "When a grand jury has been discharged by the court for the term, it may be reassembled by the court at any time during the term, and in case of a failure of one or more of the members to reassemble the court may complete the panel by impaneling other qualified persons in their stead, in accordance with the rules prescribed in this chapter for completing the grand jury in the first instance."

The above we think are the only statutory provisions applicable to the question here raised. The appellant does not show anywhere, or claim, that he would, or could, have successfully challenged either the array or any of the grand jurors participating in the consideration or return of the indictment against him. Neither does he claim to have been in any way injured by the matter of haste in his indictment. He does not claim that any of the grand jurors were disqualified for any reason. It is our opinion that the grand jury which did indict appellant was the legally constituted grand jury of the district court of El Paso county at the time of the indictment; that the court and the judge thereof had the power and authority to reassemble or reconvene the grand jury at the time it did, and, as no injury whatever is shown to the appellant, the court did not err in not setting aside the indictment. In this connection it might be well to state that the case was not tried at that term of the court, but was continued at the suggestion of the appellant to the next term of the court, and that his trial was not begun until October 3, 1910. No authority is cited by appellant in his brief or oral argument to sustain his motion to set aside the indictment. It is not necessary to recite in full the evidence in this case. We will only give a brief summary of it so as to more clearly bring out the questions discussed and decided.

The deceased, Kohlberg, some seven years before the killing, rented to appellant a hotel belonging to the deceased. It seems that no trouble arose between them about the payment of the rents until February or March, 1907; at least, if any trouble arose before then, the evidence does not disclose it. The deceased himself did not collect his rents, but had rental and collecting agents to do so for him. In February or March, 1907, the appellant got behind in the payment of his rents for the hotel. Deceased's agents thereupon began to press him for payment, repeatedly presenting bills for the payment of the back rent. The collecting agents for the deceased was a firm known as Stevens Bros. They had various bookkeepers and collectors whom they sent out to collect rents and also from the appellant. Among other agents whom they sent for the collection of the rent was one A. R. Coleman. Coleman went to see the appellant with a list of these back rents, and demanded payment. Appellant objected to it, and they had considerable argument thereabout at the time. This was in February or March, 1907. Coleman made a second trip to the appellant, and presented the bill, and told appellant that deceased had ordered him, appellant, to be put out if he did not pay his rent. The appellant replied, "If he does, I will kill the damn Jew." It seems that from that time on there was more or less trouble with the appellant in the collection and attempted collection of the rents due the deceased for the hotel. Again, in April, 1909, Chas. B. Stevens, one of the firm of Stevens Bros., after repeated efforts to collect the rents, told the appellant that the rents continued to go behind, and, if they continued, they would be obliged to take steps to put him out, and he then told this witness that, if anything was done to put him out of that house, he would go up there and kill Mr. Kohlberg over it. Again, in April, 1910, this same witness,...