Martin v. State

• Decision Date: 12 January 1910
• Citation: 124 S.W. 681
• Parties: MARTIN v. STATE.
• Court: Texas Court of Criminal Appeals

124 S.W. 681

MARTIN v. STATE.

Court of Criminal Appeals of Texas.

January 12, 1910.

Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.

Hattie Martin was convicted of robbery, and she appeals. Affirmed.

John A. Mobley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction was for robbery, the punishment assessed being five years' confinement in the penitentiary.

The evidence shows that appellant, with two other parties, committed robbery from the person of R. L. Smith. The state's evidence is to the effect that the assaulted party was in the city of Dallas, having come over from Oak Cliff, and was standing on the corner of Wood and Jefferson streets waiting for a street car to return home. While standing there a white man, who had been following him, came up and said: "Hello, pal, where are you going?" The witness told him he was going home when his car came. Witness says the white man grabbed him by the right arm, and the negro man took hold of the other arm, and appellant came up, and the white man handed her a bottle, which he took out of his pocket, and told her to hold it to witness' nose. She pulled the stopper, and held the bottle to his nose until he lost consciousness. When he regained consciousness he was back of an old rock house that stands on the corner, and was covered with a lot of sacks, papers, and old stuff. He says he was almost suffocated, and thought he was dead. He immediately made complaint, and appellant was arrested, being recognized by the fact that she only had one leg, or "limb," as the witness calls it. She at first denied knowing anything about the matter, but finally returned the purse taken from the witness. This purse was valued at 10 cents, and had $1.10 inside. This witness said he was robbed by the one-legged negro woman, a negro man, and a white man, and so described the people to the officer who made the arrest. Appellant took the stand, and denied any connection with it, and said that the alleged assaulted party come to her house, and offered her 50 cents for permission to go to bed with her; that he was drunk. She denied making the statement to the officer about which the officer testified, and told him that the purse that she had was given to her by the negro, Jim Cass.

1. The first bill of exceptions recites that when the case was called appellant objected to proceeding with her trial on the jury lists handed her. The bill recites her objections as follows: "This case was set for trial during a week when there was no drawn jury according to the wheel jury law passed by the Legislature for counties having a city of more than twenty thousand population or according to the statutory law providing for the selection of juries. The defendant objected to going to trial with a picked-up jury." These objections were overruled, and appellant's attorneys ordered to proceed with the selection of the jury from the list furnished. It seems from the recital in the bill that the case had been set down for trial the previous week, to wit, on the 17th day of February, but, owing to the fact that a number of cases were tried, this case was not reached or called, but was postponed and reset for the 22d of February. The bill further recites that the court had ordered regular juries drawn, and they had been drawn for alternate weeks, as has been the habit of the court; that is, one week for ordinary felony cases, and the next week for special venire cases. In the alternate weeks, special venire cases, a large number of which were on the docket, had been set for trial. The case of State v. Kaufman was set for the 22d, and the court having reason to believe that said cause would be continued when reached ordered a number of cases set during that week to be taken up in case the court should be idle, the court stating to counsel, and here states, that owing to the crowded condition of the docket and the county jail, he wanted to utilize every moment possible. When the Kaufman Case was continued upon application of the defendant, "the court ordered the sheriff to procure, and he did procure in a legal way, talesmen to serve as jurors during that week, and this was the list furnished the defendant. Therefore, because in a manner unexpected no jury has been drawn from the wheel, and the court could not run without a jury, the court overruled the defendant's objections to the panel of talesmen, and required a jury to be selected from said panel." As this bill presents the matter, we are of opinion there is no error shown. In the absence of jurors drawn under the terms of the statute, as here shown, we are of opinion that the court is not without power to secure jurors for the transaction of the business of the court. So, in this case, we are of opinion the court had the authority to have a jury summoned for the disposition of such cases as were set down for trial.

2. Another bill recites that after the jury had been examined as a whole, but no challenge had been made, it was noticed that it was adjourning time, and the court announced that he would not lock the jury up for the noon hour, as they had not been selected, or sworn, and that the taking of evidence had not begun, but he would allow them to go at large unaccompanied by any officer during the noon hour. As this bill recites it, we see no error in this ruling of the court. The mere fact that all of the jurors summoned had been tested, but none of them selected to try the case, nor in any manner set apart or sworn, does not come within the inhibition of the statute preventing the separation of the jury. That statute refers to jurors who had been segregated and impaneled in the case. Here, no juror had been selected, they had simply been tested as a whole, which we suppose means their qualifications in a general way had been tested for excuses and matters of that sort. As the bill is incorporated in the record, we are of opinion there is no error shown.

3. There is quite a lengthy bill complaining of a speech of the assistant county attorney. When the court's attention was called to the statements of the county attorney, the court instructed the county attorney to stay within the facts of the case, and cautioned him against making the comments he had made, and instructed the jury that it was not legitimate argument, and that the county attorney should not have used the same, and the jury would not consider it for...