Mackey v. State
| Decision Date | 20 November 1912 |
| Citation | 151 S.W. 802 |
| Parties | MACKEY et al. v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Taylor County Court; Thomas A. Bledsoe, Judge.
J. P. Mackey and Minnie Grice were convicted of adultery, and they appeal. Affirmed.
M. W. Shelley, Jr., of Abilene, for appellants. C. E. Lane, Asst. Atty. Gen., for the State.
The appellants were jointly indicted for adultery. They were tried together jointly, and in the trial represented by the same attorney. Each was convicted, Mackey fined $325 and Grice $100. They both appealed, each entering into a recognizance separately.
The record shows that in the organization of the jury, when both sides got through with their challenges, only five jurors were left. Thereupon both sides agreed in open court, both appellants being present, to try the case before a jury of five, which was done. No objection was made by the appellants, or either of them, by their attorney, or any other way, pending the trial. After the verdict of conviction, on motion for new trial, for the first time appellants claim that the case was tried before a jury of five men only, instead of six, and that they personally did not agree to this at the time. The verdict, as rendered, was signed by one man as foreman, and not by the other four. We think the record clearly shows that each of the appellants did agree to try the case before a jury of five men; but, whether they did or not, they knew all the time during the trial and until after its conclusion that they were being tried by a jury of five men, and made no objection thereto. The charge against them was a misdemeanor. Our statute provides that an appellant in a misdemeanor case can waive a jury altogether. This would carry with it the further right to agree to a trial by a jury composed of less than six men. Stell v. State, 14 Tex. App. 59. And it was too late for appellants to make said objection to wait till after the verdict of the jury before making any complaint. West v. State, 54 Tex. Cr. R. 597, 114 S. W. 142; Munson v. State, 34 Tex. Cr. R. 498, 31 S. W. 387; C. C. P. art. 938.
The verdict of the jury does not have to be signed by the foreman or any other or others of the jury, even in a felony case. Petty v. State, 59 Tex. Cr. R. 586, 129 S. W. 615.
By several bills appellants complain that the court admitted certain admissions and statements by each of the parties when the other was not present, and complain that the court did not charge that such testimony should be considered only against the one so making such statements or admissions, and omitted to charge that it should not be considered against the other. As the evidence on the trial of both persons was clearly admissible in the case, it was the duty of the respective appellants, if they desired it, to request written charges limiting the consideration of such evidence to the party making such statement or admission. And, if such charge were refused, it was his duty to take a bill of exceptions thereto, and thus preserve his point. It is only when such course is pursued that this court can consider any such question on appeal in a misdemeanor case. This clearly not having been done does not present reversible error. This has always been the established law of this state, and decided so many times that it is unnecessary to collate or cite the authorities; but see Giles v. State, 148 S. W. 320; Perkins v. State, 144 S. W. 244; Golden v. State, 146 S. W. 946; Lutrall v. State, 142 S. W. 589; Melear v. State, 145 S. W. 354. This applies also to appellants' complaint of the refusal of the court to give their special charge.
The state, being under the necessity of securing a conviction somewhat upon circumstantial evidence, and the court having given a correct charge on that subject, did not commit any error in admitting the testimony of Tom Newman as complained by appellant, as his testimony was admissible as a circumstance, among others, tending to show that the parties he saw were the appellants, and under such circumstances as clearly showed they had sexual intercourse on that...
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Goodwin v. State
...testified before the grand jury at that time. Even if we could consider this bill, such testimony by them was clearly admissible. Mackey v. State, 151 S. W. 802, and cases there cited in the rehearing By another bill too meager to require the court to consider it (Conger v. State, 63 Tex. C......
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State v. FIRST JUDICIAL DIST. COURT
...Ga. 661, 25 S.E.2d 295, and Schulman v. State, 76 Tex.Cr.R. 229, 173 S.W. 1195. And we may add to the case last cited, Mackey v. State, 68 Tex.Cr.R. 539, 151 S.W. 802; and Kuhn v. State, 142 Tex.Cr.R. 40, 151 S.W.2d 208. It is claimed that, in the absence of substantial differences in const......
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Ex Parte David Garza.
...to a trial by a jury composed of less than six men.” 30 Almost thirty years later, this Court cited Stell to affirm a conviction in Mackey v. State,31 holding that the defendants had agreed to proceed with a jury of five in a misdemeanor prosecution for adultery and could not complain of an......
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Garza v. State
...a trial by jury carries with it the concomitant "right to agree to a trial by jury composed of less that six men." Mackey v. State, 68 Tex. Crim. 539, 151 S.W. 802, 803 (1912) (holding statute provides that defendant in misdemeanor case can waive jury altogether and "[t]his would carry with......