Lenert v. State

• Decision Date: 24 April 1901
• Citation: 63 S.W. 563
• Parties: LENERT et al. v. STATE.
• Court: Texas Court of Criminal Appeals

63 S.W. 563

LENERT et al. v. STATE.

Court of Criminal Appeals of Texas.

April 24, 1901.

Appeal from Donley county court; B. H. White, Judge.

J. Lenert and Mrs. M. D. Leiman were convicted of adultery, and they appeal. Affirmed.

Orrick & Terrell, for appellants. D. E. Simmons, Acting Asst. Atty. Gen., for the State.

BROOKS, J.

Appellants were convicted of adultery, and the punishment of Lenert assessed at a fine of $200, and that of Leiman at a fine of $100. Motion was made to quash the information, the charging part of which is as follows: "That heretofore, to wit, on or about the 8th day of October, 1899, and anterior to the filing of this information, in the said county of Donley and state of Texas, J. Lenert, a man, and Mrs. M. D. Leiman, a woman, did then and there unlawfully live together, and have carnal intercourse with each other, the said Mrs. M. D. Leiman then and there being lawfully married to another person, then living," etc. It is urged that the information does not charge any offense, because it does not charge that the defendant Mrs. M. D. Leiman at the time was married to some other person than her co-defendant, J. Lenert. An inspection of the information shows these contentions are not well founded, since the same does charge that the "said Mrs. M. D. Leiman then and there being lawfully married to another person then living." Appellants, however, in the argument insist that the information is defective because it fails to state the name of the person to whom Mrs. M. D. Leiman was married. As far back as the case of Collum v. State, 10 Tex. App. 708, we held it was not necessary in an information charging adultery to allege the name of the party to whom one of the defendants was married. The Collum Case was followed in Hildreth v. State, 19 Tex. App. 196. But appellants insist, notwithstanding these decisions, that the information is defective, under McAfee v. State, 38 Tex. Cr. R. 124, 41 S. W. 627, and Rice v. State, 37 Tex. Cr. R. 38, 38 S. W. 801. These decisions were under a different statute from the one here under consideration. In the last two cases appellants were prosecuted for bigamy. It matters not what the rule may be as to the form of indictment in that character of offense, we hold it is not necessary, in an adultery information, to allege the name of the party to whom the defendant was married. We do not think the court erred in overruling the motion to quash the information.

By bill of exceptions No. 1 it is made to appear "that when the cause was called for trial, no jury being in attendance, and none having been drawn or selected by the jury commissioners at any previous term of the court for this term, the court, upon its own motion, set this cause for December 11, 1899, and immediately appointed three men, possessing the qualification for jury commissioners, who, after being qualified as the law directs, selected twenty-four jurors for the second week of this term; and said jury commissioners delivered to the court, in open court, the list of jurors selected, and the same was delivered to the clerk by the court, and the clerk immediately made certified copies of said jury list, and delivered the same to the sheriff, who summoned them; and on said 11th day of December, 1899, when this cause was called for trial, defendants objected to said list of jurors so summoned, and filed motion to quash said list of jurors,"—the grounds of objection being because there was no jury drawn at the last term of this court, nor were there any jury commissioners appointed by this court at any previous term to select the jury for this term; therefore no jury appeared, and the court, on his own motion, on the first day of this term, selected the jury commission to draw this jury for the purpose of trying this case. Further objection is made because this jury was not summoned by the sheriff of Donley county under his oath, as required by law. Under article 695, Code Cr. Proc., it is provided that, when from any cause there are no regular jurors for the week from which to select the jury, the court shall order the sheriff to summon forthwith such number of qualified persons as it may deem sufficient, and from those summoned a jury shall be formed as provided in the preceding article of this chapter. As contended by appellants, the proper practice would have been for the court to have had the sheriff to summon the jurors; but appellants have shown no injury by the means and manner resorted to for the selection of the jury in this case, and we do not think such error was committed by the court as requires a reversal.

Bill No. 2 complains that, while the jury were being examined touching their qualification to sit as jurors to try this cause, defendants asked the jury as to what church they were members of,—as to whether or not any of them were members of the Methodist Church at Clarendon; to which the state objected, and defendants thereupon stated to the court that the complaint upon which the information is based was made and sworn to by Rev. J. R. Henson, pastor of the Methodist Episcopal Church South, of Clarendon, and that there was much religious feeling engendered in this case, and the jurors who might be members of the church of which the prosecuting witness, Henson, was pastor, ought to be further interrogated as to their fitness and qualifications to sit in this cause; and the court sustained the objection of the state, and refused to permit defendants to ask said question, and defendants excepted. The bill does not disclose that any juror sat in this case who was a member of the same church with the prosecuting witness, Henson. So, conceding there was error in the court's ruling, yet the bill does not show it.

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