Matthews v. State

• Decision Date: 22 May 1900
• Citation: 58 S.W. 86
• Court: Texas Court of Criminal Appeals
• Parties: MATTHEWS v. STATE.<SMALL><SUP>1</SUP></SMALL>

58 S.W. 86

MATTHEWS v. STATE.¹

Court of Criminal Appeals of Texas.

May 22, 1900.

Appeal from district court, Cherokee county; J. G. Russell, Judge.

Ed Matthews was convicted of murder, and appeals. Affirmed.

Gregg & Brooks, Dashiell & Dashiell, C. M. Kay, Perkins & Gibson, and Wilson & Watkins, for appellant. A. G. Greenwood, Campbell & McMeans, and Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was indicted in Anderson county, and upon change of venue was tried in Cherokee county, was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 25 years.

At the time the homicide was committed, in Anderson county, the district court was in session, but the grand jury had been discharged for the term. The court set aside the order discharging the grand jury, and entered an order reassembling the grand jury. It appears that, of the 12 members, all were present in answer to said summons. On account of one of the grand jury, to wit, J. L. Tucker, being related to deceased, Jim Stafford, and for the further reason that said Tucker had contributed to a fund to prosecute appellant, upon the challenge of the state the court excused said grand juror. Afterwards the state withdrew its challenge to said Tucker, and the court had him recalled. Thereupon appellant objected to Tucker being recalled on the ground alone that he had been excused by the court, appellant expressly disclaiming any intention or desire to challenge him. The court then excused Tucker because of the exceptions made by the state, and partly upon his own motion. Appellant moved to set aside the indictment on the grounds: "(1) There was present one person, to wit, T. A. Gossett, not authorized by law, when the grand jury which found and presented said indictment were deliberating upon the accusation against defendant, and when said grand jury were voting upon said indictment. (2) Said indictment was found and presented by a body composed of thirteen members, and pretending to be a grand jury organized at the April term, 1899, of the district court of Anderson county. (3) At the time said indictment was found and pretended to be present, there was no court in session in Anderson county to which said indictment could be presented." An inspection of the record shows there is no merit in the last reason assigned by appellant for setting aside the indictment. Article 411, Code Cr. Proc., provides: "When the grand jury has been discharged by the court for the term it may be reassembled at any time during the term, and in case of a failure of one or more of the members to reassemble, the court may complete the panel by impaneling other qualified persons in their stead in accordance with the rules prescribed in this chapter for completing the grand jury in the first instance." In order to arrive at a proper construction of this article, it is necessary to consider the previous articles of chapter 7, which relate to the organization of the grand jury. It is conceded by appellant that if the juror Tucker, who was excused by the court, had not been present, then the very terms of article 411 would have authorized the court to have another juror summoned and impaneled in lieu of the juror Tucker; appellant's insistence being based upon the fact that the grand juror Tucker was present and stated his relation to deceased, and that he had subscribed to a fund to prosecute appellant, and that these reasons were not sufficient to authorize the discharge, and that the court could not have discharged him for any character of reason, he being present. In other words, appellant's contention is that the grand jury, when once organized, remains as it is then organized during the entire term of the court, regardless of the fact that the judge has discharged them for the term and reassembled them. When a grand jury is discharged by the court for the term, it is functus officio, so to speak. In other words, it ceases to exist, unless the court sees fit to reassemble it as provided in article 411; and, when article 411 provides that on the "failure of one or more of the members to reassemble the court may complete the panel," this clause certainly does not mean the mere physical presence of the grand juror, but, if he is disqualified for any of the reasons set forth in chapter 7, then the court, upon his sound discretion, or motion of the district attorney, or upon proper, legal exception by appellant himself, can discharge the grand juror. See Trevinio v. State, 27 Tex. App. 372, 11 S. W. 447. In other words, we hold that article 411 authorizes the court to organize the grand jury as it did in the first instance. Appellant, in his able brief, concedes that if the case of Trevinio v. State, 27 Tex. App. 372, 11 S. W. 447, is the proper construction of this article, then his insistence is without merit. We there held that: "After a grand jury has completed its labor, and as a body has been discharged for the term of the court, as a body it ceases to exist, and its autonomy and personnel are in a measure, if not completely, changed and destroyed when it is sought to reassemble them. We think it clear from the phraseology of the statute that it was within the contemplation and intention of the legislature that when the grand jury was reassembled they could only be organized and impaneled with twelve men; that there must be at least that many persons; that no less number would suffice, and, if there were not twelve present, the number could be completed by impaneling other qualified persons in their stead." To hold otherwise than as above would be depriving appellant and the state of subdivision 2, art. 401, wherein the statute provides that a grand juror is disqualified if he is a prosecutor upon the accusation against appellant. It is an axiomatic rule of statutory construction that the Penal Code must be construed as one harmonious whole, if it can be done. To give article 411 the construction insisted on by appellant would be defeating the very object, purpose, and intent of said article, since the evident intent of the legislature was to provide a quick and expeditious manner and means of reorganizing the grand jury for the purpose of investigating crimes that may have occurred between the time of the discharge of the grand jury and their reassembling. Suppose all 12 of the jurors were summoned, and all were present, and all were very sick; could it be seriously urged that the court could not discharge that grand jury, and order the sheriff to summon another? If so, then the statute might, in all human probability, be rendered ineffectual and void by one of the usual incidents of life. We are not warranted in giving it this construction, but believe the clear import of the language, coupled with the other articles in said chapter 7, leaves no doubt of the fact that, if the grand juror is present and unable to serve, "the court may complete the panel by impaneling other qualified persons in their stead in accordance with the rules prescribed in this chapter for completing the grand jury in the first instance." Appellant further insists that the Trevinio Case, supra, is overruled by Gay v. State (Tex. Cr. App.) 49 S. W. 612. In that case appellant made a motion to quash the indictment "on the ground that the grand jury finding the bill had previously been adjourned for the term, and, when it was reassembled, that it was not then impaneled and sworn according to law, and, furthermore, that when it was reassembled it was not composed of the same grand jurors which had been impaneled at the beginning of the court; that one Howard Miller's name did not occur on the list, but that the name Howard Wagner occurred twice. It was shown as to this that the name Howard Wagner occurred twice by mistake, and that Howard Miller's name should have appeared in one place instead of the name of said Wagner. This sufficiently shows that it was the same identical grand jury which had been originally impaneled at the beginning of said term of court, and it was not necessary, when they were reassembled, to reimpanel them; that is, it was not necessary to go through the formality of testing them as to their qualifications, and reswear the members of said grand jury. Article 411, Code Cr. Proc. 1895, controls this matter, and, it is apprehended, where the constituents of the grand jury reassembled are the same, that the court shall do no more than set aside the order discharging the grand jury, and then order their reassembling. Of course, it would be different where the original grand jury does not attend, and other persons are summoned to fill out the original panel." We do not see any conflict between the excerpt quoted from the Gay Case and the Trevinio Case. In the Gay Case we hold that where all the grand jury are reassembled, and none of them are set aside for any reason, the mere discrepancy in stating the name of one does not affect the panel, nor is it necessary to reswear them, since they have all been sworn touching their qualifications as grand jurors. However, in the case at bar, while the juror Tucker appeared, he was disqualified under the statute from sitting, and when he was discharged another grand juror was placed in his stead, and the panel was then and there completed, and made and constituted a constitutional grand jury, under the laws of this state. We therefore hold appellant's motion to set aside the indictment was properly overruled.

Appellant insists the court erred in giving the following charge to the jury: "Homicide is permitted by law and is justifiable when inflicted for the purpose of preventing the offense of murder, maiming, disfiguring, or other serious bodily injury, when the killing takes place under the following circumstances: (1) It must reasonably appear by the acts, or by words coupled with the acts, of the person killed, that it was the purpose and intent of such...