Lowe v. State

• Citation: 226 S.W. 674
• Decision Date: 09 June 1920
• Docket Number: (No. 5797.)
• Parties: LOWE v. STATE.
• Court: Texas Court of Criminal Appeals

226 S.W. 674

LOWE v. STATE.

(No. 5797.)

Court of Criminal Appeals of Texas.

June 9, 1920.

Rehearing Denied January 5, 1921.

Appeal from District Court, Wilson County; Covey C. Thomas, Judge.

John W. Lowe was convicted of murder, and he appeals. Affirmed.

R. R. Smith, of Jourdanton, J. Ed. Canfield, of Floresville, Henry S. Paulus, of Yoakum, Fly & Ragsdale, of Victoria, and Dibrell & Mosheim, of Seguin, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted of the murder of one Tullos, in the district court of Wilson county, and his punishment fixed at confinement in the penitentiary for life. The case originated in Atascosa county, and was sent to Wilson county upon change of venue. It is urged that the trial court should have discharged Juror Darelik of the court's own motion, and that his failure to do so was error. From the record, it appears that when the work of impaneling the jury was begun, this was the first juror to be examined, and that he stated in substance that from reading the papers and hearing talk upon the streets he had come to a conclusion about the case that would influence his verdict. He does not appear to have been asked and answered the question as to whether he could try the case under the law and evidence, and lay aside such opinion. The understanding of the English language by said juror, and of legal terms, was not made clear by the examination given him. After the juror stated to the court that he had an opinion which he thought would influence his verdict, the judge asked appellant's counsel if they desired to challenge the juror for cause, stating that if they did so desire, he would sustain their challenge. Appellant's attorney declined to challenge said juror for cause, and when the state accepted him appellant also accepted him, and he was duly sworn, and sat as a juror. No bill of exceptions was taken or reserved then by appellant to the taking of said juror. That the juror was objectionable was first disclosed in appellant's motion for a new trial. A bill of exceptions was taken to the court's refusal to grant a new trial upon this ground. In his explanation affixed to said bill, the trial court states that appellant declined to challenge the juror for cause, and further, that appellant did not use a peremptory challenge upon him, and the jury was obtained before appellant had exhausted his peremptory challenges. We might content ourselves with saying that it is too late after the verdict to complain of errors committed in the impaneling or organization of the jury. Jones v. State, 37 Tex. Cr. R. 433, 35 S. W. 975; Moore v. State, 55 Tex. Cr. R. 3, 114 S. W. 807; Ellington v. State, 63 Tex. Cr. R. 427, 140 S. W. 1101; Kinch v. State, 70 Tex. Cr. R. 419, 156 S. W. 649. As said by Judge Hurt in Caldwell v. State, 12 Tex. App. 316:

"Will this court reverse a judgment for these irregularities, when the defendant made no objection at the time, taking his chance of being acquitted by this jury thus sworn, and holding in reserve this matter to be used in his motion for new trial, and, on failure then, to be used in this court as ground for reversal of the judgment? We think not."

As said by Judge Davidson, in the Kinch Case, supra:

"Appellant went to trial without objection, accepted the jury, reserving no exception. There was no challenge to the array; nor was there an exception reserved to any juror who sat upon the trial. * * * If appellant had objected to these jurors, or to the array before the selection of the jury, his case would have presented a very different proposition. We therefore hold that, even had the matter been presented by bill of exception, we could not reverse, inasmuch as appellant accepted the jury without objection and only suggests it, after trial, in the agreed statement in the statement of facts."

If the defendant accepts a juror after learning that he has an opinion, he cannot afterward complain that the juror was not fair and impartial. Kirk v. State, 37 S. W. 440; Aud et al. v. State, 36 Tex. Cr. R. 76, 35 S. W. 671; Armstrong v. State, 34 Tex. Cr. R. 248, 30 S. W. 235; Hughes v. State, 60 S. W. 565; Tinker v. State, 58 Tex. Cr. R. 321, 125 S. W. 890; Powers v. State, 69 Tex. Cr. R. 494, 154 S. W. 1020.

All other grounds of challenge for cause may be waived, except that the proposed juror has been convicted of theft or felony, or that he is under indictment for theft or felony; that he is insane, or so physically defective as to render him unfit. Article 692, Vernon's C. C. P.; Greer v. State, 14 Tex. App. 179; Poole v. State, 45 Tex. Cr. R. 361, 76 S. W. 565.

Appellant cites authorities in support of his contention, but an examination of each of them discloses that in none does there appear a state of case at all similar to the one before us. In the Stagner Case, 9 Tex. App. 450, appellant exhausted all his peremptory challenges, and was forced to take as jurors certain persons who had opinions which they stated would require evidence to change, to each of whom he made challenge for cause, which was overruled. All the expressions used by the court in the Stagner Case are based on and must be construed in the light of these facts; nor are they to be construed as imposing any duty on the court of his own motion to discharge a juror whose examination shows him subject to challenge for cause, under subdivision 13, art. 692, C. C. P., unless one of the parties sees fit to make such challenge. For us to hold otherwise would be for us to constitute of ourselves the lawmaking body, and to add to and change the terms of article 695, wherein it is stated that no juror shall be impaneled when it appears that he is subject to either the third, fourth, or fifth cause of challenge laid in article 636, although both parties may consent. It would be for us to so change this article as to make it also include the thirteenth cause for challenge. We do not understand this to be our province. Specific statutory mention of these three grounds excludes those not so named.

The Spear Case, 16 Tex. App. 113, is also cited, but in that case a challenge for cause was sustained, and all in that opinion which is authoritative relates to the correctness of the ruling of the trial court in upholding a challenge for cause. The Steagald Case, 22 Tex. App. 488, 3 S. W. 771, also cited, is against appellant's contention. The court there upheld the action of the trial court in overruling the appellant's challenge for cause to a juror, and aptly said:

"Moreover, it is not shown * * * that defendant had exhausted his peremptory challenges, and unless that is shown he has no right to complain. Loggins v. State, 12 Tex. Ct. App. 65; Bean v. State, 17 Tex. Ct. App. 60; Heskew v. State, 17 Tex. Ct. App. 161."

In the Suit Case, 30 Tex. App. 323, 17 S. W. 458, also cited, this court held the action of the trial court correct in overruling the challenge for cause. In the Randle Case, also cited, 34 Tex. Cr. R. 43, 28 S. W. 953, the only question before the court remotely related was the question of a change of venue, and the discussion of said question, as relating to the one before us, is merely argumentative. In the Parker Case, 45 Tex. Cr. R. 336, 77 S. W. 783, also cited, the question involved was the correctness of the action of the trial court in overruling a challenge for cause. No case is cited, nor do we know of any, in which, on a state of facts similar to the one before us, it is held to be the duty of the trial court to grant a new trial where a juror was accepted by the accused, with full knowledge of the matter set up in the motion for new trial.

Complaint was also made in appellant's motion for new trial that the court failed to limit in his charge to the jury the testimony offered by appellant to impeach one Will Rainey, who was a state witness. We do not understand the rule to be that such testimony should be limited. Givens v. State, 35 Tex. Cr. R. 564, 34 S. W. 626; Ogle v. State, 58 S. W. 1004; Thompson v. State, 55 Tex. Cr. R. 120, 113 S. W. 536; Ellis v. State, 69 Tex. Cr. R. 468, 154 S. W. 1012. If such limitation were proper, the failure of the court to so state in his main charge was not excepted to, nor was any special charge asked presenting the issue, and in such case no error would appear. Article 743, Vernon's C. C. P.; Bedford v. State, 75 Tex. Cr. R. 309, 170 S. W. 727; Hawkins v. State, 74 Tex. Cr. R. 452, 168 S. W. 93; Burge v. State, 73 Tex. Cr. R. 505, 167 S. W. 63; Roberts v. State, 74 Tex. Cr. R. 150, 168 S. W. 100; Johns v. State, 76 Tex. Cr. R. 303, 174 S. W. 610.

The only case cited by appellant, supporting his contention in this regard, is Bell v. State, 17 Tex. App. 538. We observe that the law requiring exceptions taken to the charge, or special charges requested, has been changed since the rendition of this decision.

Misconduct of the jury is set up in the motion for new trial. Aside from the general matters averred, it is stated that two jurors were communicated with while on the jury by persons interested in securing a conviction, and that the communications were injurious to appellant. The jurors named were Myers and Clark. Subdivision 7 of article 837, Vernon's C. C. P., states that a new trial shall be granted when the jury, after retirement, have received other testimony, or where a juror has conversed with any person in regard to the case, etc. Our authorities hold that it must appear that there was a communication, that it related to the case, and that no injury could or did follow. See authorities collated, page 791, Vernon's C. C. P.; section 598, Branch's Ann. Penal Code. Upon the hearing of the facts as to this misconduct when the motion for new trial was presented, it was testified by Spencer McKenzie that as the jury were passing him at one time he remarked to Juror Myers, "Why don't you fellows get a shave?" and that either at that time, or on another occasion, ...