Munson v. State

• Decision Date: 22 May 1895
• Citation: 31 S.W. 387
• Parties: MUNSON v. STATE.
• Court: Texas Court of Criminal Appeals

31 S.W. 387

MUNSON v. STATE.

Court of Criminal Appeals of Texas.

May 22, 1895.

Appeal from district court, Harris county; E. D. Cavin, Judge.

Joe Munson was convicted of burglary, and appeals. Reversed.

Thompson & Carter, for appellant. Mann Trice, Asst. Atty. Gen., for the State.

HENDERSON, J.

The appellant in this case was tried under an indictment charging him with burglary, and his punishment assessed at two years in the penitentiary; and from the judgment and sentence of the lower court he prosecutes this appeal.

The appellant assigns as error that he challenged a juror, Hiller, on the list handed him, but that, by some means, said juror was called in the box, and constituted a part of the jury, and was sworn, and, after the indictment was read and the plea of not guilty entered, the appellant for the first time discovered the presence of E. H. Hiller on the jury. He then asked the court to stand him aside, and call another juror. This the court refused to do, and appellant excepted. We think the appellant did not exercise proper diligence. He should have discovered the mistake before the jury was sworn, and then made his motion to withdraw his plea, and discharge the jury, and draw another jury. But, conceding that he had the right to have the juror set aside after he made the discovery, no injury appears to have resulted, as no opinion as to the case, or animus or prejudice, is shown to have existed on the part of the juror against appellant.

The second error assigned is that the court allowed the witness Max Hirsch, over the objections of the defendant, to testify as to what Tom Henderson, a codefendant, said and did on the next day after the alleged burglary, as same was after the perpetration of the alleged offense, and as the acts and declarations of the said Henderson are not shown to have been in the presence and hearing of the defendant, and not being of such a nature as to call for any explanation or denial on the part of the defendant. The evidence in this case shows that the house of Charlie Lucia was burglarized, and the trunk of Lucia broken open, and certain gold coins taken therefrom, to wit, five $2½ gold pieces, which bore date of 1852, and one $10 gold coin of the United States. The testimony tending to show the connection of this defendant with the crime was, in substance, as follows: Tom Henderson, Will Jackson, and Joe Munson were associates, and were frequently at the store of the prosecutor, Lucia. These three def...