Livar v. State

• Decision Date: 10 October 1888
• Citation: 9 S.W. 552
• Parties: LIVAR <I>v.</I> STATE.
• Court: Texas Court of Appeals

Page 552

9 S.W. 552

LIVARv.

STATE.

Court of Appeals of Texas.

October 10, 1888.

Appeal from district court, Hidalgo county; J. C. RUSSELL, Judge.

Defendant, Casimero Livar, was convicted of murder in the first degree, and sentenced to be hung. He appeals. Code Crim. Proc. Tex. art. 756, provides that, where a witness does not understand and speak English, an interpreter must be sworn to interpret for him.

Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

This appeal is from the death penalty imposed by the verdict and judgment in the court below upon a conviction for murder in the first degree. There are several bills of exception in the record which cannot be determined, because their materiality and pertinency could only be ascertained by a consideration of them in connection with the facts proved upon the trial, and the record before us contains no statement of the facts established by the evidence at the trial. In this category are the bills numbered 1, 5, and 8, relative to the rulings upon the application for continuance, and the admissibility of testimony. Several bills of exception were reserved to the rulings upon questions which arose upon the selection and organization of the trial jury.

1. When the name of Henry Cass, which was the fourteenth name on the special venire, was reached, he was found to be absent; and defendant applied for and procured an attachment to be issued for him under provisions of article 618, Code Crim. Proc. This attachment issued May 8th, and was returned on the 9th, showing that said juror was "a decrepit old man, over age." The impaneling of the jury was not completed until the 10th. Defendant (as we understand the exception) objected, on the morning of the 10th, to proceeding with the completion of the jury until the juror Cass was produced in court; and his objection was overruled, and the jury impaneled, without the juror having been brought into court. "Ordinarily it is not competent for the court to excuse a juror summoned upon a special venire until he has appeared and been sworn to answer questions touching his service and qualifications, even though he may be exempt from jury service, and the court apprised of the fact. His excuse, if he has any, must be claimed and established under oath." But there are exceptions to this rule; as, for instance, where one is sick, or so decrepit from bodily infirmity, as to be unable to appear and present his excuse in person. "In such case, he might send his excuse by another, and the court could hear and determine it in his absence. If the defendant is dissatisfied, or desires to disprove the fact or ground of excuse, he should apply for an attachment to have the juror brought forthwith into court." Code Crim. Proc. art. 621; Kennedy v. State, 19 Tex. App. 618; Thompson v. State, Id. 593; Willson, Tex. Crim. Laws, § 2263. Now, the return of the sheriff upon the attachment for this juror showed him to be over age for jury service, and "decrepit" besides. If the defendant was not satisfied (as the court seems to have been) of the truth of this return, then it was his right to controvert the return by proof; and, upon his showing the probable falsity of the return, he would be entitled to other process to bring the juror in person into court. This course was not pursued, and, in the attitude of the question as presented, we are unable to conclude that the action of the court was either illegal, injurious, or improper.

2. With regard to the third bill of exceptions, which relates to four of the parties named on the list of the original special venire, the same facts appear to exist with regard to two of the parties named as existed in the case of the juror Cass, which we have just discussed. They "were unable to attend from sickness." Defendant, if not satisfied that such was the case, should have availed himself of his right to controvert the matter before the court. The return upon the attachment, made as to the other two special venire-men, as stated in the explanation of the judge, was that they "could not be found." As to whether the return was sufficient, and showed what, if any, diligence was used by the officer to find them, we are not apprised by the bill of exceptions; and, in the absence of such a showing, it is impossible for us properly to determine the correctness of the ruling of the court. It is to be presumed that the officer did his whole duty in making the return; and especially so where, as in this case, the sufficiency of the return is not called in question. Code Crim. Proc. art. 614; Neyland v. State, 13 Tex. App. 536; Kemp v. State, Id. 568; Rodriguez's Case, 23 Tex. App. 503, 5 S. W. Rep. 255; Powers' Case, 23 Tex. App. 42, 5 S. W. Rep. 153; Willson, Tex. Crim. Laws, § 2252.

3. All defendant's peremptory challenges were exhausted before the jury was completed; and he claims in his bill of exceptions No. 4 that, after said challenges had been exhausted, an objectionable juror was forced upon him. But the exception is not a complaint as to this objectionable juror who sat upon the trial, nor does it set forth what were the grounds, if any, of the objections to said juror. The exception is directed to the ruling of the court as to a juror who had theretofore been challenged for cause by defendant, but held competent by the court; and upon whom, in consequence, defendant was compelled to exhaust one of his peremptory challenges. It is contended that the court erred in holding the said juror competent, and in thus compelling defendant to challenge him peremptorily. On his voir dire the juror had stated that he had not formed or expressed such an opinion, as to the guilt or innocence of defendant, as would influence him in his action in finding his verdict. On further...