Mitchell v. State
| Decision Date | 01 January 1875 |
| Citation | 43 Tex. 512 |
| Parties | NELSON MITCHELL v. THE STATE. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Hood. Tried below before the Hon. A. J. Hood.
During the March term, 1874, of the District Court of Hood county, on 28th March, and after the grand jury had been discharged, N. Mitchell and others, called the Mitchell party, pursued from the county seat and assaulted Isaac Truitt and his two brothers, and succeeded in killing two of the Truitt brothers. The district judge ordered the reassembling of the grand jury, and on 31st March they presented an indictment against Nelson Mitchell, W. J. Owens, William Mitchell, M. Graves, D. A. Shaw, and Jefferson Mitchell, for the murder of Isaac Truitt and Samuel Truitt.
Exceptions were urged to the indictment because of the reassembling of the grand jury after they were discharged for the term. The exceptions were overruled.
Nelson Mitchell and Owens filed an affidavit alleging the existence of so great prejudice in the county against them as to prevent a fair trial, but that persons could not be induced to make affidavit of the existence of such prejudice; asking process for certain persons, residents of the county, who affiants believed would testify to the existence of such prejudice; asking a change of venue.
The court had the persons named in the affidavit brought before the court, and they testified (as the record states) “that defendants could have a fair and impartial trial in Hood county, and that there was no prejudice or combination in Hood county against defendant Nelson Mitchell,” upon which examination the court refused to change the venue.
The cause was called for trial on Thursday of the second week of the November term, 1874, whereupon the defendant objected to the action of the court in calling the cause out of its regular order on the docket, there being other cases undisposed of before it. The court on the first day of the term had ordered a venire in the case for sixty jurors returnable on the second Thursday of the term, and the defendant had been served with a copy of the venire six days before the case was called. The court overruled the objection and proceeded with the trial.
The defendant thereupon moved to quash the venire, because eight of the jurors summoned had been on a venire summoned at a previous term of the court to try D. A. Shaw, jointly indicted with defendant, which motion was overruled.
When the first name upon the venire of sixty men was called, and after the juror had qualified himself as a competent juror and the State had accepted him, and the juror was turned over to the defendant, the defendant at the time refused to pass upon the juror, because the State had not accepted and tendered him a full panel of twelve jurors. This objection the court overruled and compelled defendant to pass upon the juror.
After four jurors had been selected of the said venire and there being fifty untried, the court adjourned until one o'clock p. m., and on the meeting of the court the district attorney presented the affidavit of one Fletcher Ford, that in July preceding he had heard L. W. Murray, one of the four jurors who had been accepted, say that he “wanted to get upon the jury to try Nelson Mitchell; that he was guilty, and that he (Murray) wanted to hang him.” Whereupon the court, the defendant and his counsel being present, announced that the juror would be set aside without prejudice to either party should the parties assent.
To this the district attorney agreed, but the defendant would not consent. Thereupon the court permitted the district attorney to withdraw his acceptance of Murray as a juror and challenge him on the part of the State, thus leaving three jurors instead of four; and the call of the jurors upon the venire proceeded: to all which the defendant excepted.
The defendant objected to the exhibition in evidence of the clothing worn by the murdered men when killed.
The facts are substantially as given in the case of Shaw v. The State, supra.
The jury returned a verdict of murder in the first degree, fixing the penalty at death.
Motions in arrest of judgment and for new trial were overruled, and defendant appealed.
No brief for appellant.
A. J. Peeler, Assistant Attorney General, for the State.
Most of the questions presented for our consideration by this record have been fully examined and determined by the court in the case of Shaw v. The State, which was decided at an earlier day of the present term. It is unnecessary, therefore, for us to discuss them again. There are, however, a few points presented in this case, which were not in that case, upon which it is proper that we shall express our views.
1. It is said the court erred in refusing to change the venue. If appellant has the slightest grounds for...
To continue reading
Request your trial
-
Sanchez v. State
...as an application upon the part of the appellant. Code Crim. Proc. art. 628. The court rightly sustained an exception to it. Mitchell v. State, 43 Tex. 512; O'Neal v. State, 14 Tex. App. 582; Macklin v. State, 53 Tex. Cr. R. 197, 109 S. W. 145; Gibson v. State, 53 Tex. Cr. R. 349, 110 S. W.......
-
Gibson v. State
...county, who, affiant believed, would testify to the existence of such prejudice, the application did not comply with the statute. Mitchell v. State, 43 Tex. 512; Wall v. State, 18 Tex. 683, 70 Am. Dec. 302. This question was fully considered in the case of Willis Macklin v. State (decided a......
-
Matthews v. State
...them, was by setting aside the order discharging them, and ordering their reassembling. Wilson v. State, 32 Tex. 112; Mitchell v. State, 43 Tex. 512; Newman v. State, 43 Tex. 525. And as far back as State v. Jacobs, 6 Tex. 99, it was held that a venire facias issued to summon a new grand ju......
-
Hildreth v. State, 4-4539.
...the prisoner should be given the opportunity to present his evidence. Blanks v. Commonwealth, 105 Ky. 41, 48 S.W. 161; Mitchell v. State, 43 Tex. 512; cf. Shiver v. State, 41 Fla. 630, 27 So. As far as we can tell from the printed record this appellant was tried fairly; but we cannot make t......