Moore v. State

• Decision Date: 19 June 1907
• Citation: Moore v. State, 107 S.W. 540 (Tex. Crim. App. 1907)
• Parties: MOORE v. STATE.
• Court: Texas Court of Criminal Appeals

107 S.W. 540

MOORE v.STATE.

Court of Criminal Appeals of Texas.

June 19, 1907.

Rehearing Denied February 12, 1908.

Appeal from District Court, Hill County; W. C. Wear, Judge.

A. J. Moore was convicted of murder in the second degree, and he appeals.Affirmed.

Walter Collins, C. L. Block, and C. M. Smithdeal, for appellant.F. J. McCord, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 25 years in the penitentiary; and he prosecutes this appeal.

This is the third appeal of this case; appellant having been tried twice before, convicted, and his case reversed.For a report of the facts on former trial, seeMoore v. State, 72 S. W. 592, 7 Tex. Ct. Rep. 17, andId., 75 S. W. 497, 67 S. W. 499, 8 Tex. Ct. Rep. 116.The facts on this trial are substantially the same as on the former trials.Briefly stated, it is shown, on the part of the state: That appellant was paying attention to one Susie Jones, and was engaged to marry her.On the night of the homicide Mat Hunt, deceased, made an engagement with Susie to accompany her from the church to where she lived at the residence of one Bowman.Appellant objected to her going home with Hunt, and insisted on going with her himself.She refused, however, to leave Hunt and go with appellant.Appellant then went with Mary Roberts, a sister of Susie Jones, who lived also at the Bowman residence.Appellant was told before going not to go up there and raise a fuss with Hunt.Hunt and Susie preceded them, and, when appellant and Mary Roberts arrived, they passed the others who were standing or sitting in the yard.Appellant and Mary Roberts went into the house.After remaining there a short time, Alex Anderson, a cousin of appellant, came.In a short while he took a pistol out, and held it in his lap.Appellant in the meantime requested Mary Roberts to tell Susie to come in, which she did, but Susie refused to come in.Alex Anderson asked appellant if he wanted his pistol.Appellant at first said he did not, but subsequently said he would take it, and took it and went out where deceased and Susie were sitting.He slapped Susie.Deceased rose up, and appellant threw his gun in his face, and said, "Now, nigger, if you have anything to do, do it."Deceased said: "That is all right, A. J. I am your friend."Appellant then shot him.Appellant testified that, when he went out there, Susie was sitting in deceased's lap; that he slapped her, and Mat jumped up and put his hand in his pocket, and she(Susie) said, "Don't hurt him," and he(appellant) shot him; that he shot him because he thought deceased aimed to draw a weapon.This is a sufficient statement of the case to discuss the assignments.

In forming the jury appellant claims that the court improperly deprived him of some four or five challenges for cause by holding that the jurors were qualified.It appears that appellant was a negro, and the deceased was also a negro; that the jurors were white men.On the examination of these jurors, they stated that they had some race prejudice against the negro; that they did not entertain the same degree of respect for a negro's testimony, as a general proposition, that they entertained for the testimony of white men.However, they stated they had no prejudice against appellant, and they would accord him a fair trial, and that they would accord him all his rights before the law, and they stated that they would not convict a negro on less testimony than they would a white man.As illustrative of the attitude of some of these jurors on the question, we quote from the testimony of one of the jurors, which is a fair sample of others: "Q.Youfeel like you would not give the testimony of a negro testifying in his own behalf the same weight and attach to it the same credibility that you would if he was a white man?A.I couldn't conscientiously.I have not got as much confidence in a negro as a white man.I couldn't be as conscientious with a negro as a white man.I would be perfectly willing to give a negro justice as I would a white man, yet I could not believe the negroes as a race as the white people as a race."He further stated that in the trial he would give a negro all the guaranties which the law accords him, such as the presumption of innocence and reasonable doubt.Some of these jurors testified that they knew or had heard of the former trial and conviction of the defendant.Appellant challenged each of said five jurors for cause, which was overruled by the court, and he afterwards exhausted his peremptory challenges, and was compelled, as he states, to take one J. M. Ivey on the jury, who, he says, had knowledge of the former conviction of the defendant.Our statute as cause of challenge does not enumerate race prejudice as a ground of challenge, yet in accordance with the fourteenth amendment, and under the decisions of the Supreme Court of the United States, prejudice against the negro race which leads to discrimination in the formation of either grand or petit juries is considered sufficient ground to set aside an indictment or a conviction by a petit jury.SeeCarter v. State, 39 Tex. Cr. R. 345, 46 S. W. 236, 48 S. W. 508, andId., 177 U. S. 442, 20 Sup. Ct. 687, 44 L. Ed. 839.However, this question is not directly involved.In Lester v. State, 2 Tex. App. 432, it was held, where a white man was on trial for the murder of a negro, it was proper to permit the state's counsel to ask jurors if they could return the same kind of verdict against a white man for killing a negro as they could against a white man for killing another white man upon the same evidence, and, if he could not, that this would afford ground for challenge of the juror.SeeWilliams v. State, 44 Tex. 34, andFendrick v. State, 39 Tex. Cr. R. 147, 45 S. W. 589.The five jurors interrogated stated distinctly that they had no prejudice against appellant, but they did state that they would not accord to a negro the same degree of credit as to his testimony that they would to a white man.While the bill does not show that any white witness testified in the case, yet there was one white witness who did testify for the state, to wit, Bowman.But, even if we could review the testimony of this witness in connection with the bill, it does not occur to us that he testified to anything of a material character; so that, as it occurs to us, there was no conflict as between his testimony and the defendant's witnesses, and it does not occur to us that under the circumstances that the race question, or the fact that the jurors might give more weight to the testimony of a white person than a negro, would have any effect in this case.Aside from this, however, we do not believe that it is shown that Ivey, whom appellant says he was compelled to take, was an objectionable juror.Appellant says in his bill that Ivey was objectionable to him because he knew of a former conviction of appellant.It seems that on the examination of this juror, after the verdict, he states that he knew or had some idea that appellant had been formerly convicted for the same offense, but that he made no suggestion of this matter in the jury room, and had no recollection that the matter was suggested.We do not believe this was a prejudiced juror, and it is not shown that he was an unfair juror.

Appellant complains of the misconduct of the jury in regard to discussing in the jury room the fact that appellant had been formerly convicted of the same offense.Appellant had some nine of the jurors summoned on this issue, and they were examined.Nearly all of these jurors stated that, so far as they knew or recollected, no allusion was made to any former verdict.A number of them stated that they did not know until after they had rendered a verdict that appellant had been previously...