Oates v. State

• Decision Date: 12 April 1905
• Citation: 86 S.W. 769
• Parties: OATES v. STATE.
• Court: Texas Court of Criminal Appeals

86 S.W. 769

OATES v. STATE.

Court of Criminal Appeals of Texas.

April 12, 1905.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Burrel Oates was convicted of murder, and appeals. Reversed.

J. E. Forrest, W. Lindsay Bibb, and A. S. Baskett, for appellant. Hatton W. Sumners, Co. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at death; hence this appeal.

Before announcement of ready for trial, appellant made an affidavit for a severance. The affidavit showed that there were pending against Hollis Vann, Frank McCue, and Will Dalton separate indictments, charging them with the same offense; that the evidence of all of said parties was material to appellant's defense; that there was not sufficient evidence against said parties, or either of them, to secure their conviction. Wherefore he asked that said parties be first put upon trial. It is disclosed that Hollis Vann was tried first and convicted. So the question of severance passes out as to him. The bill does not make it clear as to what disposition was made of Dalton's case. But as to Frank McCue, it shows that the motion was overruled. There was no counter affidavit on his part controverting appellant's application, or desire that appellant be first put upon trial. The court explains, as to Frank McCue, that he had made an agreement and contract in writing with the state to testify against defendant Burrel Oates; the state agreeing to exempt said McCue from prosecution. Thus the question is presented whether the state has the right to defeat a motion to sever by showing an agreement between the state and the party against whom the severance is asked to turn state's evidence. We are referred to a number of cases in which a severance, when claimed under the statute, is recognized as a matter of right. Price v. State (Tex. Cr. App.) 40 S. W. 596; King v. State, 35 Tex. Cr. R. 472, 34 S. W. 282; Shaw v. State, 39 Tex. Cr. R. 174, 45 S. W. 597; Manor v. State (Tex. Cr. App.) 77 S. W. 786; Wolf v. State, 79 S. W. 520, 9 Tex. Ct. Rep. 946. These cases are not applicable, inasmuch as the question of an agreement to turn state's evidence is not involved in either of said cases. This exact question was decided in Ex parte Greenhaw, 41 Tex. Cr. R. 278, 53 S. W. 1024, and in Stevens v. State, 42 Tex. Cr. R. 154, 59 S. W. 545. Under these cases it is held that a right to a severance can be defeated altogether when the state shows that it has entered into an agreement with the party against whom the severance is asked that such party shall testify for the state. In such case the party must comply with the agreement before he can even ask a dismissal of the case. In other words, there must be a compliance with the terms of the contract on the part of such person agreeing to turn state's evidence, before he can claim immunity. We accordingly hold that the state's answer to the motion to sever, that it had made and entered into an agreement with the party or parties against whom the severance was asked that such person should turn state's evidence, was a sufficient answer to appellant's motion requesting a severance, and the court did not err in overruling said motion.

Appellant made a motion to quash the indictment because it failed to set out the essential elements of robbery. The indictment here merely recited the language of the statute (article 711, Pen. Code 1895), that the murder was committed with express malice in the perpetration of robbery, without further setting out the robbery. We think this was sufficient. We do not understand it to be contended that the court failed to instruct the jury in its charge with regard to the essential elements of robbery. This was done. See Wilkins v. State, 35 Tex. Cr. R. 525, 34 S. W. 627; Ransom v. State (Tex. Cr. App.) 70 S. W. 960.

Appellant made a motion to quash the special venire because the clerk, in drawing the same, failed to place the names of all the jurors for the term in the box. This is explained by the court by stating that there were two other defendants (Vann and McCue) charged with the same offense by separate indictments, and that a list of 75 jurors were drawn in each case from the box before appellant's jury was drawn; that is, it is shown that the jury for the term consisted of 520 names; that in Vann's case a list of 75 jurors were first drawn, and then another list of 75 jurors were drawn in the McCue case from the remainder, and then appellant's jury was drawn, without first replacing the names of those drawn in the two other cases in the box. So that, out of 520 jurors, appellant only had a list of 370 to draw from. It is insisted by the state that this was correct practice, because the jurors in the other two cases would evidently be disqualified in appellant's case. To support this contention the state refers us to Kipper v. State, 77 S. W. 611, 8 Tex. Ct. Rep. 852. However, an examination of that case discloses that no objection was made to the special venire until the same was exhausted; and the court then summoned other talesmen, and these were brought in, when, for the first time, objection was urged. Besides, it appears from affidavits that this course was agreed to and indorsed by appellant. Here the objection was made at the threshold, and there can be no question but that the objection was timely. The statute requires (article 647, Code Cr. Proc. 1895) that whenever a special venire is ordered the names of all the persons selected by the jury commissioners to do jury service for the term at which such venire is required shall be placed upon tickets of similar size and color of paper, and from this list the special venire ordered is drawn by the clerk. As was said in Burries v. State, 36 Tex. Cr. R. 13, 35 S. W. 164, in construing this statute and others relating to special venires: "These and other articles following, as we understand it, provide the machinery for the trial of a capital case, and an essential part of the machinery is a special venire. This special venire a defendant, when brought to trial in a capital case, has the right to demand. Nor can he be brought to trial until he has had one day's service of such special venire. In this case he was not only refused one day's service of the special venire prior to his trial, but he was not tried by a special venire at all, but, as appears from the bill of exceptions, by the regular jury. If it was competent for him to waive trial by special venire, it does not appear that he did so in this case. On the contrary, he claimed his right to a day's service of the list of special veniremen summoned for his trial. It did not excuse the state because neither the state nor appellant called for a special venire, or failed to have such special venire summoned for the trial, because the law makes that an essential part of the machinery by which one accused of a capital offense is to be tried. * * * The law guaranties to persons to be tried for offenses the character of tribunal authorized and appointed by law to try them, and, because such a tribunal was not used, it is no answer to say that sufficient...